Better my SOB than your SOB

Posted: Aug 10, 2005 12:00 AM

Recent news that Supreme Court nominee John G. Roberts Jr. once worked with gay activists on a landmark anti-discrimination case has all sides scurrying, with amusing results.

Let's just say everyone's petard is getting a workout.

Conservatives hoping for someone who would rule in their favor on social issues find out that Roberts has helped the opposing team. Liberals hoping to unearth something contrary with which to oppose Roberts discover that his worst sin to date is his failure to mention on his pre-confirmation questionnaire that he's worked pro bono for gays.

Bad Roberts! No. Good Roberts! Finally, we have a quagmire. This time those looking for a fight may have to surrender to irony.

It is, after all, awkward for the left when the worst thing liberals can say about a conservative nominee is that he did something they like. It is likewise awkward for the right when its dream nominee - the one who is supposed to help reweave Western civilization's fraying tapestry - has been tugging on one of the threads.

What's a culture warrior to do?

In the middle, of course, is the truth of the matter, which is that Roberts may be just what the country needs and what President George W. Bush  has said he seeks in a Supreme Court nominee - a purist. Someone who will engage issues on their legal merits and interpret them according to the Constitution's original intent.

In the gay-rights case, Roberts was advising on strategy and reportedly spent only a few hours on the case. Thus, there's probably not enough from which to draw conclusions about how Roberts personally views gay rights or how he might rule on gay issues.

Likewise, there's no predicting how he'd vote on abortion or affirmative action. What we do know is that he respects precedent, because he has said so. And we now also know that he's nimble enough to consider without bias issues he might find personally objectionable.

But that's not good enough in Looking Glass America, where right is seen as wrong, and good is viewed as bad. Some on the right apparently can't absorb the thought that their chosen one would entertain legal options that benefit homosexuals, as Rush Limbaugh asserted on his radio show.

"There's no question this is going to upset people on the right," he said. "There's no question the people on the right are going to say: 'Wait a minute . the guy is doing pro bono work and helping gay activists?'"

The fact that Roberts worked with gay activists seems perfectly cheery news that argues in favor of his confirmation, not because it endears him to gays and liberals, but because it demonstrates that Roberts is exactly what both conservatives and liberals say they want. Even if they don't really mean it.

Conservatives who condemn Roberts for having worked on a case they find objectionable are confused, perhaps. Because at the core of their complaint is a presumption of prejudice (Roberts') and a lack of faith in a system predicated on the assumption of impartiality.

Here's what I mean: Our legal system is based on the notion that both judges and jurors can be objective. Our faith in that system is frequently reaffirmed as we rediscover that jurors consistently rise to the occasion.

The voir dire portion of trials - during which lawyers question potential jurors to determine their history, experience and possible biases - is based upon the theory that most people most of the time can be relied upon to tell the truth and to honestly appraise their own prejudices.

For reasons best left to psychologists, people are usually better at this than we expect. When asked to judge their peers, ordinary Americans become fair-minded arbiters and executioners of a duty they take seriously.

Obviously, we expect at least as much of our judges and especially of those who rise to the level of the highest court. And yet, we question these men and women as though they were incapable of the minimal standards we expect from people with no legal training or judicial temperament.

Roberts' work on the gay anti-discrimination case suggests that he is capable of thinking impartially - even when it may not suit him personally - and that he pledges his allegiance to principle rather than to politics. That seems a fair description of what we might hope for in a Supreme Court justice, no matter what one's political persuasion.

Despite protestations to the contrary, the most strident voices on both left and right really seek a jurist who will actively promote their agenda. They don't want an ideologue, in other words, unless he's their ideologue.