The Week

The Washington Post editorialized that John Roberts is “a man of substance and seriousness” and that President Bush “deserves credit” for nominating him. The Los Angeles Times said that he is “a judicious choice.” But we’ll try to keep an open mind.

Justice Sandra Day O’Connor’s jurisprudence, all too often, has been neither based on the Constitution as understood by its ratifiers nor mindful of the requirements of the rule of law. She has been applauded, especially by liberals, for her lack of rigid principles. President Bush was urged to pick a “consensus” nominee like her. We think that whether a justice is a faithful servant of the law is more important than whether his nomination draws universal praise in the Senate and on the op-ed pages. But as it happens, O’Connor’s career is a study in the breakdown of consensus. Her pragmatism made it easy for her to find compromises, and thus to offer something for everyone. No party ever knew that it had definitively won or lost. Liberals and conservatives; supporters and opponents of abortion; friends and foes of school prayer; activists for and against racial preferences; nationalists and federalists: All had a chance of winning her vote for their cause in the next case, less because she was applying principles impartially than because she was not applying principles at all. But the lack of clear rules made the Court’s will that much more important. Justice Scalia’s relatively rule-bound jurisprudence constrains his decisions in a way that Justice O’Connor’s jurisprudence never constrained hers. Scalia is often described as a “polarizing” justice. But if his jurisprudence were to prevail, over time there would be fewer people marching in front of the Supreme Court-because the Court would no longer be handing out large political victories. O’Connor’s jurisprudence, on the other hand, was a recipe for endless political conflict within and around the courts. Political activists had every reason to want the next appointee to the Court to share their views and sensibilities. No wonder confirmation hearings have gotten so bitter. Let us hope that the nomination of Roberts (about whom more below) is the beginning of a way out.

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The Washington Post editorialized that John Roberts is “a man of substance and seriousness” and that President Bush “deserves credit” for nominating him. The Los Angeles Times said that he is “a judicious choice.” But we’ll try to keep an open mind.

Justice Sandra Day O’Connor’s jurisprudence, all too often, has been neither based on the Constitution as understood by its ratifiers nor mindful of the requirements of the rule of law. She has been applauded, especially by liberals, for her lack of rigid principles. President Bush was urged to pick a “consensus” nominee like her. We think that whether a justice is a faithful servant of the law is more important than whether his nomination draws universal praise in the Senate and on the op-ed pages. But as it happens, O’Connor’s career is a study in the breakdown of consensus. Her pragmatism made it easy for her to find compromises, and thus to offer something for everyone. No party ever knew that it had definitively won or lost. Liberals and conservatives; supporters and opponents of abortion; friends and foes of school prayer; activists for and against racial preferences; nationalists and federalists: All had a chance of winning her vote for their cause in the next case, less because she was applying principles impartially than because she was not applying principles at all. But the lack of clear rules made the Court’s will that much more important. Justice Scalia’s relatively rule-bound jurisprudence constrains his decisions in a way that Justice O’Connor’s jurisprudence never constrained hers. Scalia is often described as a “polarizing” justice. But if his jurisprudence were to prevail, over time there would be fewer people marching in front of the Supreme Court-because the Court would no longer be handing out large political victories. O’Connor’s jurisprudence, on the other hand, was a recipe for endless political conflict within and around the courts. Political activists had every reason to want the next appointee to the Court to share their views and sensibilities. No wonder confirmation hearings have gotten so bitter. Let us hope that the nomination of Roberts (about whom more below) is the beginning of a way out.