On Thursday news broke that Supreme Court nominee John Roberts willing contributed time (pro bono) to a gay rights case that produced a landmark ruling from the U.S. Supreme Court in favor of the gay lobby. Read the original article here. (It may be a free registration situation. I'm sure similar articles are available elsewhere online as well.)
Over the next couple days I engaged in an e-mail exchange with a friend who follows such things more closely than I do. Yesterday we talked for a half hour or so. After we hung up, I realized that we were largely talking past each other. He was essentially saying, "Give Roberts a fair chance." I was saying, "Roberts was a bad nomination."
After reflection, I think both positions are valid and tenable. Roberts may well be a true conservative. We should probably give him a chance. I'm guessing that he'll make a pretty decent justice.
But that's the problem. We're guessing.
President Bush promised during his campaign to appoint justices in the mold of Antonin Scalia and Clarence Thomas. That statement was as significant for what it didn't say as for what it did. Notice that Bush didn't say Scalia, Thomas, and Rehnquist. I'm convinced there was a reason for that choice. Although Rehnquist is a conservative, he's a bit softer than Scalia and Thomas. Bush knew that his religious conservative base would not respond as positively to a Rehnquist-style nominee as to a Scalia/Thomas nominee.
Here we are a year later. What did we get with the first appointment? Someone we don't really know. Someone we are guessing about. Someone who clerked for Rehnquist, not Scalia or Thomas. Someone who has made strong statements on some issues but is unclear on abortion and gay rights, the two issues that are undoubtedly the hottest of the hot buttons to the religious conservatives.
I'm going to argue, however, that no one should be ticked off at Roberts for this situation. He is who he is (whoever that is). In 3–5 years we'll know much more about that. If I had to guess right now, I would guess that he will be pretty similar to Rehnquist. Give him a chance to prove that.
If there is anyone with whom conservatives have reason to be disappointed, it is the President. Why? Because he's given them no reason to think that he kept his promise. Because appellate court justices Michael McConnell and Mike Luttig have demonstrated reliably conservative viewpoints through their opinions. Because Bush chose the guy who would be easily confirmed. Because by choosing a white male with his first appointment he essentially eliminated any possibility that McConnell or Luttig will ever become Supreme Court justices. Because all conservatives can do today is guess and hope.
Bush knows many things I don't. I hope one of them is that Roberts is a conservative, originalist ideologue. I hope that I am compelled ten years from now to write him a letter apologizing for my bad judgment. I suspect that I won't.