The quality of a legal mind is not, generally, the deciding factor in a Supreme Court nomination. Consider that every year 35 young lawyers serve as clerks to Supreme Court justices, generally after clerking for appellate court judges who have recommended them, having gotten that job after showing exceptional promise in law school. Of this select group, only four former clerks have themselves served on the Court. To believe that the nine Supreme Court justices are the nine most qualified lawyers in the country, one must believe that the process for awarding clerkships, designed to identify outstanding legal talent, is completely broken. The evidence suggests the opposite: that those who build undistinguished records devoid of material that might offend interested parties during a confirmation fight — think David Souter — are the sort of jurists that tend to get these nominations, especially if, like Sandra Day O’Connor, they are of the proper gender or ethnicity. (Clarence Thomas falls into the quota-filling category, too; that he’s gone on to distinguish himself on the bench is one of history’s happy accidents.)
That President Bush has nominated John G. Roberts, Jr. to replace O’Connor is thus a welcome surprise. Roberts would be the fifth former clerk to serve on the Court; he clerked for William Rehnquist and, if Rehnquist remains on the court past the day Roberts is confirmed, will be the first former-clerk to serve alongside his own boss. A judge on the D.C. Circuit Court since his confirmation by unanimous consent in 2003, his experience with the Supreme Court itself is impressive: he’s argued 39 cases before it, and won 25, both as a public servant (he was an Associate Counsel to President Reagan and Principal Deputy Solicitor General to the senior President Bush) and in private practice (representing mostly corporate clients). Antonin Scalia reportedly considers him the best Supreme Court litigator in the country.
It would be impossible to argue that Roberts is unqualified. “There’s no question that Judge Roberts has outstanding legal credentials and an appropriate legal temperament and demeanor,” admitted Senator Chuck Schumer (D-Apparatchik) last night, but added that Roberts, whom Schumer opposed for the D.C. Circuit, must “answer a wide range of questions” about his views. “The burden is on a nominee to the Supreme Court to prove that he is worthy, not on the Senate to prove that he is unworthy,” said Schumer, setting a standard that didn’t seem to apply when Clinton’s Supreme Court nominees were each confirmed in an average of 58 days from their nomination.
So, what about those views? Blogger Tom Goldstein suggests that to understand Roberts one must understand his one-time boss. Roberts, writes Goldstein, shares Rehnquist’s institutionalist temperament — “he has worked for essentially his entire professional career before the Supreme Court.” Indeed, Roberts said in his brief statement last night that he harbors “a profound appreciation for the role of the Court in our constitutional democracy and a deep regard for the Court as an institution.” The implication is that, like Rehnquist, Roberts will probably pay heed in his jurisprudence to preserving the Court’s reputation. That’s not the only similarity, Goldstein argues. Roberts has, like Rehnquist, shown some leniency on executive branch powers combined with a tendency toward circumscribing federal powers.
On abortion, the issue that drives these debates (thanks again, Justice Blackmun), Roberts’s record is not entirely clear. In 1990 he authored a brief for the first Bush administration that called for the overturning of Roe v. Wade, but that he presented his client’s position tells us very little about whether he shares it (only that he wasn’t so at odds with the administration that he would resign over it). He told the Judiciary Committee in 2003 that “Roe v. Wade is the settled law of the land….There is nothing in my personal views that would keep me from upholding it.” Thus he respects “vertical” stare decisis on abortion — the principle that lower courts must follow Supreme Court precedent. But that tells us nothing about his views on “horizontal” stare decisis, the idea that the Court should avoid overturning its own precedents. It is probable but not certain that, like Rehnquist, he would overturn Roe, for which many of the usual arguments for strong stare decisis do not apply; the Court’s abortion jurisprudence has certainly not promoted stability or predictability in the law. (On policy grounds, Roberts almost certainly opposes abortion; his wife was once Executive Vice President of Feminists for Life.)
Expect Roberts to duck questions in hearings about what he would do in particular cases; most jurists consider answering such questions, and thus implicitly deciding cases before hearing the arguments, to be unethical. Expect Democrats to ask those questions anyway. And expect him ultimately to be confirmed; against a nominee of Roberts’s caliber, Schumer’s “burden of proof” principle is far too flimsy to sustain a filibuster.