I am neither elated nor alarmed by President Bush’s choice. While pundits and legal scholars will spend the next few months debating what kind of justice John G. Roberts will make, given what little paper trail he has left behind him, I take any such exercises with a grain of salt. The truth is that, should he be confirmed, it will take years for us to find out what kind of judge Roberts is. Any arguments Roberts made as a private attorney or deputy solicitor general (for example the brief that said Roe was “wrongly decided and should be overturned”) carry the caveat that he was just speaking on behalf of his client. He did not amass a substantial archive of decisions to pore over during his short stint on the DC Circuit.
President Bush has said he would select a justice in the Thomas/Scalia mold. I’m hoping that Roberts turns out to be more of a Thomas than Scalia. While the media typically lump the justices together, Thomas has proved himself the more consistent defender of the constitution. On the Raich decision, for instance, Scalia concurred with the majority that drug enforcement officials could prosecute citizens who were cultivating marijuana for their own personal, medical use. Thomas rightly argued in a dissenting opinion that “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–?and the Federal Government is no longer one of limited and enumerated powers.”
With all this said, I think there’s no doubt that Roberts will be confirmed, barring some extraordinary revelation. The Republicans have 55 votes in the Senate, so all they need is to peel off five Democrats to avoid a filibuster. The moderate Democrat Sen. Joe Lieberman already described Roberts as being “in the ballpark.” Democrats have conceded that he’s well qualified, only offering token opposition about how he’s going to have to clarify his views in Senate hearings. Even liberal advocacy groups have been forced to issue tepid statements about how his nomination “raises concerns.” As far as I’m concerned, this is all made for TV. The media has been expecting a bare-knuckled brawl over the nomination, and nobody wants to disappoint.