Bush’s appointee to the bench

Will John Roberts uphold the ideal of jurisprudence?

By Rohit Joy
From the September 2005 Print Edition

Nearly every plank of the secularist-socialist platform envisioned by the American left has been soundly rejected by voters at the polls. Abortion on demand, the purging of religion from the public square, welfare benefits for illegal aliens, and homosexual marriage are just a few examples. Yet nearly every one of these planks has become “settled law,” involuntarily shoved down the throats of the American people. How has this happened? The answer is, of course, the Supreme Court, the only remaining medium through which the left can shape public policy.

It is precisely because the Supreme Court is the left’s last front in the culture war that the stakes involved in the president’s appointee to the Court are so high. Until relatively recently, nominations and confirmations occurred quite swiftly. Judicial appointees generally underwent a quick background check, and if they had no ethical lapses they were confirmed. They did not even have to appear in person before the committee.

What has changed since then is that Supreme Court justices have gone beyond their constitutionally prescribed role of simply interpreting the Constitution, and have begun legislating from the bench. This shift in the balance of power from Congress and state and local government to the Supreme Court has greatly increased the importance of who sits on the Court in resolving important hot-button policy questions such as whether abortion should be legal, and has invited the types of vitriol and character assassination commonly observed during the appointment process today.

Conservative Americans have long sought to reverse the Supreme Court’s ever-increasing policymaking role. Richard Nixon, the first president to make returning the Court to its originally intended role a centerpiece of his campaign, nominated Clement Haynesworth and G. Harold Carswell to the Supreme Court, but both were rejected by Senate Democrats who were reluctant to stem the tide of liberal judicial activism. Nixon was then forced to settle for the more easily confirmable Harry Blackmun, who later wrote the majority opinion in Roe v. Wade. Ronald Reagan, likewise, had to settle for Anthony Kennedy after Robert Bork was rejected. Kennedy, like Blackmun, has voted with the activist wing of the Court several times, even invoking foreign law to justify his rulings on some occasions.

President George W. Bush has repeatedly cited Clarence Thomas and Antonin Scalia as model justices, and pledged to nominate someone who holds a similar judicial philosophy. After a long-awaited vacancy on the Court, he selected John Roberts to replace Sandra Day O’Connor. Bush stated in his nomination speech that Roberts will “strictly apply the Constitution in laws, not legislate from the bench.” Will Roberts live up to Bush’s promise? There are reasons for both optimism and pessimism.

Most conservative groups have endorsed John Roberts. The American Conservative Union, for example, stated that “President Bush has made an excellent selection in John Roberts, a solid conservative jurist of keen intellect and unquestioned integrity.” Another reason to believe that Roberts will fulfill Bush’s promise is that he stated in a legal brief as deputy solicitor for the first President Bush that “we continue to believe that Roe v. Wade was wrongly decided and should be overruled.” Although he later pledged to uphold Roe as the “settled law of the land” during his confirmation hearings for the D.C. Circuit Court of Appeals, this reflected the well-established practice that lower courts must follow Supreme Court precedent. Roberts has argued for conservative causes on numerous occasions as a lawyer and clerked for Chief Justice William Rehnquist, both of which serve as evidence that he believes in strict constructionism.

While Roberts has all these qualifications going for him, conservatives must not be overly optimistic. Several past Republican presidents, including Reagan and the elder Bush, appointed judges touted as originalists who ended up being anything but. Sandra Day O’Connor, for example, has repeatedly endorsed the “right” to abortion and racial preferences in college and university admissions even though she was appointed by President Reagan, who vehemently opposed judicial activism.

Similarly, David H. Souter was described by John H. Sununu, the first President Bush’s chief of staff, as a “home run for conservatives” who would likely overturn Roe v. Wade. A few liberal Democrats, including Senators Ted Kennedy and John Kerry of Massachusetts, voted against him for this reason. Contrary to expectations, however, Souter has not only upheld Roe but endorsed the seizure of private property for non-public uses in Kelo v. New London and committed countless other acts of judicial activism. It is thus impossible to determine with certainty whether Roberts will exercise judicial restraint simply because President Bush appointed him.

The political left has, for many years, succeeded in remaking America to fit its image of utopia without the support of a majority of Americans or grounding in the Constitution as written. With as many as three or four potential vacancies in the next few years, President Bush has the historic opportunity to restore American jurisprudence to its original state, in which the unalienable rights to life, liberty, and property are guaranteed above all else. If he fails, it may be many years before we have this opportunity again.

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