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Hail to The Chief


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John Roberts won praise from most quarters for his conduct during his 20 hours of questioning from senators. Some of this praise strikes us as a trifle overdone. How intellectually nimble does a member of the Supreme Court bar have to be to deal with Joe Biden? (Should the reviews tempt Roberts to arrogance, he should reflect that nobody is smarter than Biden believes himself to be.)

Roberts’s answers suggested that his jurisprudence would be within the proper constitutional bounds. “Judges and justices are servants of the law, not the other way around,” Roberts explained. “Judges are like umpires. Umpires don’t make the rules. They apply them. . . . No one ever went to a ballgame to see the umpire.” The subtext of his answers about international law was that they don’t pick rules from other games in other countries, either. These are the constitutional basics, and they leave considerable room for disagreement about what good judging, like good umpiring, means in practice. Yet the basics seemed genuinely to puzzle a good many Senate Democrats. A good judge, in their view, was one who would protect “abortion rights.” One who, in addition, would give Congress broad power, except when taking a broad view of individual rights. (When these two imperatives are in conflict, presumably a good judge consults the Democratic platform.)

In his discussion of the role precedent should play at the Supreme Court, and especially of the Court’s precedents having to do with “privacy” and abortion, Roberts was careful. His answers did not commit him to overruling Roe v. Wade and Planned Parenthood v. Casey — but that fact does not mean that he committed himself to upholding those rulings, either, even if a fair amount of liberal wishful thinking to that effect has been aired.

Roberts said that the Constitution protects privacy rights, which it does, and suggested that the Court was not going to revisit the question of whether married couples have a right to use contraception, which it won’t. His answers here did not much differ from those given by Clarence Thomas during his hearings. Roberts said that Roe was a precedent, entitled to the same amount of deference as any precedent would be — an amount he declined to spell out. His answer was, however, in contrast to Judiciary Committee chairman Arlen Specter’s pet theory that Roe is entitled to more deference than other Supreme Court decisions because it’s so “super-duper” (a qualifier the Framers unaccountably forgot to include in the constitutional text). He acknowledged that overruling a precedent could provide a needed, or justified, “jolt to the system,” as Brown v. Board had.

“The Democrats may be poised
to do conservatives a favor
by demonstrating that no
Republican nominee can avoid
significant opposition from them.”

Roberts left the door wide open to modifying and even overturning Roe — along with other liberal precedents — when the time is right. That time may never come unless the president makes a similar appointment in filling the pending vacancy of Justice Sandra Day O’Connor. The Democrats may be poised to do conservatives a favor by demonstrating that no Republican nominee, no matter how qualified or inoffensive, can avoid significant opposition from them.

President Bush should therefore nominate the most qualified conservative jurist available to replace O’Connor — just as soon as John Roberts is confirmed.



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