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President Bush’s nomination of John Roberts to replace Justice Sandra Day O’Connor presents an opportunity to bring the Supreme Court’s “constitutional law” closer to the Constitution, and to bring power closer to the sovereign people who ratified it.

Roberts’s views on the hot-button issues that come before the Supreme Court are unknown. But by all accounts, he has a brilliant legal mind, a judicious temperament, and generally conservative views. He will, almost certainly, be an improvement on his predecessor.

Prior to his appointment, Democrats were urging the president to pick a “consensus” nominee. This was always a trap. Whether a nominee counts as a consensual choice depends, after all, on whether the Democrats choose to accept him. Senator Richard Durbin of Illinois has already declared that Roberts is “controversial.” Translation: If Durbin rejects Bush’s choice of Roberts, Bush and Roberts are the divisive ones. In truth, Roberts is as well-respected a nominee–with as much support from Democratic legal heavyweights–as a Republican president could possibly pick. He was confirmed by unanimous consent to his current position on the D.C. Circuit Court of Appeals. But if Bush is not spoiling for a fight, neither is he shrinking from one.

Other Democrats pledged to conduct thorough hearings on Roberts. By all means. It would be useful to hear Judge Roberts explain his judicial philosophy. Our own view is that the chief qualification for a justice is a commitment to the rule of law. The rule of law entails predictable, because rule-bound, judicial decisions. It entails respect for the intentions of the sovereign people who ratified the Constitution and who ratified the amendments to it: If what they ratified needs to be changed, change should occur through a lawful process of amendment rather than judicial revision. It entails some respect for precedent, but does not confuse the stability of the Court’s jurisprudence with fidelity to the Constitution.

“Progressives have been telling us

for more than a century that

the original Constitution

was inadequate.”

Originalism will not always yield conservative policy victories, but it will do so more often than not. This predictable pattern should not be considered scandalous, or evidence of bad faith on the part of conservative advocates of originalism. Progressives have been telling us for more than a century that the original Constitution was inadequate and devising theories to justify judicial departures from it, and most of those departures have been in the direction of liberalism. Rolling back those departures will tend to advance the relatively conservative political ideas that the Founders put in place, if only by returning to the people control over issues that the judiciary now decides in favor of liberalism.

Roberts’s sterling professional qualifications are not in question. If he holds and defends a philosophy like the one briefly sketched above, the Senate should confirm him.


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