Getting to know John Roberts

National Review, August 29, 2005

JOHN ROBERTS has been an extremely cautious conservative. He has not only avoided associating himself with controversial legal, political, or moral positions; he has also tried to distance himself from the Federalist Society, an organization for conservative and libertarian lawyers that does not itself take any positions. This seems to be an excess of caution. We hope that his nomination does not preclude future nominations of conservative jurists whose philosophical commitments are more overt.

But to the extent we can glean his legal philosophy, we like what we see. The memoranda that he wrote for the Reagan Justice Department and White House should not have been released, but they reveal Roberts to be not only an extremely smart and careful lawyer--which has never been in dispute--but a fairly conservative one. It is true that he was working for a client, the Reagan administration, rather than simply expressing his own views. Particular memos resulted from very specific assignments to write the best case that could be made for a position rather than to sketch his own position. But we suspect that the papers are still a better guide to his views than his work for private clients at Hogan & Hartson. His work showed a willingness to buck liberal orthodoxy on race and an appreciation of the strength of the argument against liberal orthodoxy on the right to privacy.

Some conservatives continue to have misgivings about Roberts. Their best evidence against him is his pro bono work helping the lawyers for the liberal side of Romer v. Evans (he participated in a moot court, thus helping the lawyers to predict how the justices would react to their arguments). The press, covering this controversy with typical idiocy, makes it sound as though conservatives object to Romer only because the case advanced "gay rights." But what was troubling about the decision was that the Supreme Court went out of its way to intervene in the culture wars, inventing a dubious constitutional theory in the process. If we thought that Roberts agreed with the decision, it would create real doubts in our minds about his philosophy of judging. But Roberts's work on the case seems to have been minimal--just a few hours--and to have reflected his collegiality more than his convictions. Whether Roberts should have been quite so collegial in this case is a question about which people with sound judicial views could reach different conclusions in good faith.

For the most part, however, conservatives are supporting Roberts--and very, very few of them are laboring under the delusion that his defeat would somehow advance conservative objectives.

The liberal misgivings about Roberts are, reassuringly, deeper. Even more reassuringly, liberals' attacks on Roberts have been politically ineffective. They say that he shielded violent anti-abortionists from prosecution. What really happened is that while working for the first Bush administration, Roberts submitted a brief to the Supreme Court arguing that anti-abortion protesters had not run afoul of the Ku Klux Klan Act--and the Court agreed. Anti-abortion violence remained illegal. Roberts's liberal critics say that he is hostile to the Voting Rights Act, because in the Reagan administration he counseled against amending it to turn it into an instrument for quotas. Roberts was right again, although unfortunately he lost. The liberals have not come close to establishing that Roberts would, as a justice, vote to nullify the amendments that he had opposed on policy grounds, let alone that he would be wrong to do so.

Liberal opposition to Roberts seems to rise by the week, but it still seems very likely that he will be confirmed. As he should be.