Judging Mr. Right

(7 of 7)

The burning question now, with O'Connor gone, is, How will the court rebalance? Six of the eight current Justices plus O'Connor were appointed by Republican Presidents, yet that court has restricted use of the death penalty and affirmed-- while narrowing--abortion rights, church-state separation and affirmative action. "O'Connor was accurately described as mainstream conservative in 1981," says a lawyer who has known Roberts for 20 years. "John is reasonably described as mainstream conservative today. That's not because they are the same. It's because mainstream conservatives are a little more conservative today than they were then."

In many cases decided 5 to 4 or 6 to 3, the pragmatic O'Connor was a swing vote, so how would having Roberts replace her affect the court's chemistry? He's not likely to simply take her place, says Lee Epstein, a co-author of an upcoming Supreme Court nomination history, Advice and Consent. That position goes to Justice Anthony Kennedy, the next most movable target. For now, the only label all but tattooed on Roberts' forehead simply reads, CONSERVATIVE BUT NOT AN IDEOLOGUE--which makes it impossible to know the brokering role he might assume. It is possible that Bush thinks he has found a bomb thrower with a pleasant face. But the choice could indicate where the President comes down between the two species of conservatives who have been jockeying for position on the Supreme Court-- those who remain committed to the sanctity of the institution and its traditions and those who want to blow it up.

When Roberts spoke last week of the lump in his throat whenever he climbed the marble stairs, it rang true to anyone who had ever watched him in action. And it would match the history and mystery of the court if it turned out that Roberts ultimately alienates conservatives and not those who fear any Republican appointee. Roberts may agree in spirit with those who see the past 50 years of jurisprudence as too expansive and too intrusive but respect too much the way the law is shaped to ride in and blowtorch it. He may just prove willing to conserve even opinions he faults. If that is so, then it will not be the liberals who come to wonder at George Bush's choice. --Reported by Massimo Calabresi, Michael Duffy, Viveca Novak, Eric Roston, Elaine Shannon and Mark Thompson/Washington, Kristin Kloberdanz and Maggie Sieger/Long Beach, Sonja Steptoe/Los Angeles and Nathan Thornburgh/New York