Another Perspective

Judicial Immunity

Unlike Justices O'Connor, Kennedy or Souter, John Roberts won't be embarking on a new life in a strange city that liberalizes outsiders with blandishments.

By 7.28.05

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President Bush's nomination of Judge John Roberts to the U.S. Supreme Court is an inspired choice, given Roberts' intellect, temperament and integrity. For conservatives, often burned in recent years by supposedly conservative judges who have turned left during their tenure on the Court, the selection should also be a profoundly reassuring one.

That's because John Roberts comes from inside the Beltway. Certainly, for conservatives, the term is often one of opprobrium, but it may be time for them to rethink their storied aversion to the phrase, at least when the stakes involve a lifetime seat on the Supreme Court. Paradoxically, the fact that Judge Roberts is a long-time Washingtonian suggests that he may be immune to the forces that have prompted post-nomination conversions to Beltway thinking by other supposedly "conservative" justices in the past.

On the current Supreme Court, the most reliable conservative votes are those of Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas. Is it a coincidence that all three, like John Roberts, had substantial Washington experience before being named to the Supreme Court?

The Chief Justice had served as a law clerk to Justice Robert H. Jackson and as Assistant Attorney General from 1969 to 1971. Justice Scalia headed the Justice Department's Office of Legal Counsel during the Nixon Administration, and served for four years on the D.C. Circuit before being nominated to the Court. And Justice Clarence Thomas, another D.C. Circuit alumnus, had previously served as a legislative assistant for Senator John Danforth, assistant secretary for civil rights in the Reagan Department of Education, and as director of the Equal Employment Opportunity Commission.

This wealth of Beltway experience (a good deal of it partisan) is a sharp contrast to the biographies of conservative disappointments selected by Republican presidents over the past years. Go down the list -- Harry Blackmun of Minnesota, Sandra Day O'Connor of Arizona, Anthony Kennedy of California, David Souter of New Hampshire -- none of them had any Washington, D.C. experience before being nominated to the Supreme Court.

Roberts's biography, of course, is far more consistent with the biographies of Rehnquist, Scalia and Thomas. After clerking for then-Associate Justice Rehnquist, Roberts went on to serve in the offices of the Attorney General and the White House Counsel, and was also Principal Deputy Solicitor General for Kenneth Starr during the first Bush administration. He practiced law as a Supreme Court litigator before being confirmed to the U.S. Court of Appeals for the D.C. Circuit in May of 2003. He is someone who understands the capital city well.

His extensive Washington experience may help immunize Roberts to the blandishments of the Beltway establishment. Unlike Justices O'Connor, Kennedy or Souter, Roberts won't be embarking on a new life in a strange city, a place with unique rules, rhythms and customs. And because of his extensive experience with the Supreme Court as a litigator and as principal deputy solicitor general, he won't be desperate for guidance from any of the other justices, a circumstance in which conservative novices can be excessively influenced by a liberal justice willing to serve as a mentor. Nor will Roberts be in need of a new social network, a factor that can insidiously influence newcomers feted by the liberals in the elite press and among the city's prominent social doyennes.

Certainly there are many excellent candidates for the Supreme Court in many of America's circuit (or state supreme) courts. And doubtless many of them have the fortitude, stamina, and conviction to resist even the most subtle local pressures. But given that conservatives have been surprised and disappointed in fully half their recent Supreme Court nominations, it makes good, solid sense to play the odds.

And those odds suggest that John Roberts' pre-nomination experience inside the Beltway has produced a Supreme Court nominee of strong, principled, and stable conviction.

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