[RicardoHun]

July 20, 2005
Bush's Supreme Court Choice Is a Judge Anchored in Modern Law

By LINDA GREENHOUSE
WASHINGTON, July 19 - Standing at the president's side Tuesday night, Judge John G. Roberts, a veteran of 39 arguments before the Supreme Court, spoke of his "profound appreciation" and "deep regard" for it.

"I always got a lump in my throat whenever I walked up those marble steps," he said.

Carefully chosen as they undoubtedly were, these were the words of someone deeply anchored in the trajectory of modern constitutional law, not of someone who felt himself on the sidelines throwing brickbats, nor of someone who felt called to a mission to change the status quo.

There are others, potential nominees whom the president might have chosen, who probably also feel a lump in the throat when they think about the Supreme Court, but it is caused by anger rather than reverence. That is not to say that Justices Antonin Scalia and Clarence Thomas, whom President Bush had offered as his models for a Supreme Court selection, do not respect the institution, but their stance is one of opposition to many currents of modern legal thought that the court's decisions reflect.

Now the question is whether Judge Roberts, if confirmed, will, like those two justices, commit himself to recapturing a distant constitutional paradise in which the court was faithful to the original intent of the framers or whether, like the justice he would succeed, he finds himself comfortably in the middle rather than at the margin.

His résumé suggests the latter, as does his almost complete lack of a paper trail. There are no flame-throwing articles or speeches, no judicial opinions that threaten established precedent, no visible hard edges.

To the extent that as a judge he has expressed a limited view of federal power, that is consistent with the views of Justice Sandra Day O'Connor, whom he is being named to succeed, and would not change the balance on the court. He signed briefs as a Justice Department lawyer conveying the anti-abortion position of the first Bush administration, but he has given no indication of his personal or judicial views on abortion.

Democratic senators and liberal advocacy groups were wary Tuesday night, vowing to probe beneath the smooth surface.

"Let's be clear: Judge Roberts is not a stealth nominee, because the president's inner circle knows his views well, even if Americans do not," Nan Aron, president of the Alliance for Justice, said in a statement issued moments after the nomination was announced.

And indeed, the nominee's network of associations suggests a firm identification on the conservative side of the legal spectrum: not only his involvement with the Federalist Society, but his service, before he became a judge, on the legal advisory council of the National Legal Center for the Public Interest, a group here that describes its goal as promoting "free enterprise, private ownership of property, balanced use of private and public resources, limited government, and a fair and efficient judiciary." It is a group that attracts support from many prominent conservatives.

But the recent history of the Supreme Court indicates that these sorts of biographical details are less important over the long run of a justice's career than is an internal compass, not easily reduced to a paper record or elicited by questions at a confirmation hearing.

Justice O'Connor moved indisputably to the left during her 24 years on the court, not in every area of its docket but in some of the most important ones, like affirmative action and abortion. Justices Scalia and Thomas have, by contrast, scarcely changed at all. What accounts for the difference, and what might be the experience of Judge Roberts, who, now age 50, would be likely to serve for 25 years or more?

There is no conclusive answer. But observation suggests that the answer begins with how a justice feels when entering the building each morning (typically not by walking up marble steps but by driving into an underground garage). Is that justice entering a battleground, or coming home?

Copyright 2005 The New York Times Company