The latest test of whether the process has reached meltdown

Posted: Jul 21, 2005 12:00 AM

So it's John Roberts. He is President Bush's Supreme Court nominee who will be the latest test of how close the confirmation process has approached to meltdown.

By most accounts supremely well-credentialed, Judge Roberts possesses a world-class legal mind. President Bush has said he most admires Justices Thomas and Scalia, and has pledged to nominate to the Supreme Court (as he has to the appellate courts) "strict constructionists" like them. Judge Roberts seems precisely the conservative coveted by those at the heart of Bush's political constituency.

In a perceptive New York Times Magazine profile of two nominees mired in the appellate-court process, Jeffrey Rosen wrote this about Roberts three years ago:

Judicial temperament is often hard to predict; but for what it's worth, I was struck in a wide-ranging conversation by Roberts' sense of humor, apparent modesty, and above all his Jimmy Stewart-like reverence for the ideal of law shaped by reasoned argument rather than by ideology.

Still and all, none of that means Judge Roberts will prove an easy rider through the Supreme Court confirmation process.

At the time of Rosen's article, Roberts was failing for the second time to win even a Senate hearing for an appellate court nomination. Nominated to the federal bench by the first President Bush in 1992, his nomination died without a hearing. So did his second nomination (in 2001) by the second President Bush. Only when nominated a third time by President Bush in 2003 did Roberts win not only a hearing, but confirmation to the D.C. court with relative ease.

And run these names through your mind: Miguel Estrada, Carolyn Kuhl, Claude Allen, Charles Pickering, Terrence Boyle, William Myers, Henry Saad, Brett Kavanaugh, William Haynes. All are distinguished Bush nominees to the appellate bench, yet have been denied hearings and/or confirmation by a Senate lacking the numbers or the moxie to give them an up-or-down vote.

This president plays for keeps.

He has gone with youth - nominating a 50-year-old to a seat on a court where only Clarence Thomas is younger than 65. Moreover, he has nominated a conservative who himself is a survivor in a legal establishment some of whose loftiest precincts seem each day more infused with the judicial activism (and jurisprudential nonsense) that has spread from the Yale Law School 40 years ago to many of the other leading law schools in the land. The Federalist Society is the principal antidote in the establishment to that activist infestation. It's a society boasting the membership of such compelling intellects as . . . John Roberts.

That membership alone will raise the hackles of dubious luminaries like Vermont's Sen. Patrick Leahy, who regards even the departing Sandra O'Connor as a judicial activist against the ideology that drives him. Blend in other senators who want to make each confirmation process a referendum on Roe v. Wade, and the spectacle to come may not prove particularly pretty.

It needn't be that way, and perhaps it won't.

In 1981 former Texas Democratic Congresswoman Barbara Jordan responded this way to President Reagan's nomination of Sandra O'Connor: "I don't know the lady, but if she's a good lawyer and believes in the Constitution, she'll be all right." Sixteen years later California's Senator Barbara Boxer said regarding judicial nominations, "It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor."

Despite the rightness of those expressions, we're likely in for brawling and mauling. Sen. Boxer may have given the game away when she famously altered her view - and in the name of leftist solidarity or something has supported just about every recent Democratic filibuster of Bush appellate nominees.

Over the years since the nominations of Robert Bork and Clarence Thomas, a cottage industry has been building whose sole purpose is to oppose principled nominees to the federal courts, notably the Supreme Court. Only now have its myrmidons really begun vetting the Roberts record for supposedly crippling deviations from ideological norms.

Gerald Ford nominated John Paul Stevens, Ronald Reagan nominated O'Connor and Anthony Kennedy, Bush I nominated David Souter - none distinguished by strict constructionism. In Roberts, Bush fils has reached seemingly to a solider sort.

Bill Clinton nominated two liberals (Ruth Ginsburg and Stephen Breyer) to replace liberal Harry Blackmun and conservative Byron White. President Bush is no less entitled to nominate individuals conforming to his own philosophy. John Roberts deserves confirmation - and he represents only a beginning.

Robert Bork failed famously to win confirmation to the Supreme Court. Recently he noted, regarding an institution that has fallen far from right reason:

To restore the court's integrity will require a minimum of three appointments of men and women who have so firm an understanding of the judicial function that they will not drift left once on the bench. Choosing, and fighting for, the right man or woman to replace Justice O'Connor is the place to start. That will be difficult, but the stakes are the legitimate scope of self-government and an end to judicially imposed moral disorder.