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Supreme Court's New Glue?

August 28, 2006

By James R. Copland

“The smartest lawyer in America.” That’s how John Roberts, President Bush’s nominee to replace Sandra Day O’Connor on the U.S. Supreme Court, is often described. And indeed, it’s hard not to be impressed when you begin to look at his resume: a summa cum laude graduate of Harvard College; tops in his class at Harvard Law School; a clerkship with Justice William Rehnquist on the Supreme Court; top government jobs; and extensive private practice at Hogan and Hartson, one of D.C.’s top white-shoe law firms, where in the last decade before he joined the bench he argued more cases before the Supreme Court than any other private attorney in America.

Moreover, Roberts is not just an academic whiz kid but by all accounts an affable, self-deprecating person who reflects his Catholic, Buffalo-born and Indiana-bred background. The son of a Bethlehem Steel worker, he spent his summers at Harvard toiling away in a steel mill. Roberts even has a bit of a golden boy allure in his past: he was captain of his high school football team.

All in all, Roberts sounds too good to be true. And only time will tell whether, in fact, he is. For despite all that we know about Roberts’ stellar credentials, he is in many respects an unknown when it comes to his actual viewpoints. Confirmed to the D.C. Circuit only in 2003, Judge Roberts’ written opinions on the bench-as opposed to those authored for his clients-offer only limited guidance into his ultimate Supreme Court jurisprudence, in sharp contrast to the extensive writings of other, potentially controversial nominees such as Janice Rogers Brown, Edith Jones, or Michael McConnell.

And that’s why, perhaps, he’s the ideal nominee. In the post-Bork era, nominees with clearly identifiable views are open to attack, so it only follows that presidents who want a smooth confirmation process will find hard-to-pin-down appointees.

The downside to “stealth nominees” is that they can often deceive the president doing the appointing. Justice David Souter, appointed by the first President Bush, is in many respects the left’s intellectual leader on the Court, along with John Paul Stevens, appointed by Republican Gerald Ford.

Can we expect more of John Roberts? Probably. There’s not much out there from which to assess Roberts’s views on “hot button” issues like abortion or gay rights; but then again, we would expect no less from “the smartest lawyer in America” than to understand the nuances of the confirmation mess he would face were he ever to be given this rare opportunity. But unlike Justice Souter, who was largely unknown outside his native New Hampshire, Roberts is a very known quantity in Washington, D.C. Were Roberts a Souter-in-disguise, one would expect a show of concern, rather than enthusiasm, from right-leaning interest groups.

Furthermore, it’s important to appreciate that Roberts, apart from his obvious intellect, brings to the Court over a decade’s experience representing businesses. Roberts’ practical experience should give him a real-world understanding of economic issues, which are not the forte of career government lawyer Clarence Thomas or career academic Antonin Scalia.

In this area, Roberts does have more of a paper trail, and it’s by and large a good one. In private practice, he pushed for a narrow interpretation of the overreaching Americans with Disabilities Act (a view the Supreme Court unanimously endorsed). His writings from the bench seem to paint him, like his mentor Chief Justice Rehnquist, as a committed federalist who believes in limits to Congress power under the Commerce Clause (even Justice Scalia has been soft in this area of late). And his writings suggest a strong commitment to the Constitution’s protection against government takings of private property, which the Court eviscerated last term in deciding that townships could seize individual homes for private development.

In the modern era of partisan warfare and the filibustering of judicial nominees, it’s hard to imagine a conservative with a long paper trail making it through the confirmation quagmire. In John Roberts, President Bush has picked one of the best and brightest, who will bring business acumen and a congenial personality to a divided Court that needs those attributes. Let’s give him two cheers, and keep our fingers crossed.

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