Autopsies are typically performed in private, and on dead people, so the public vivisection this summer of Supreme Court nominee John Roberts has at times been a pretty engrossing spectacle. Some opponents got sloppy in their handling of his views; NARAL Pro-Choice America had to pull an ad after linking Roberts to abortion-clinic bombers. Some supporters discovered on closer examination that maybe he was a different species of conservative than they had thought, particularly when they learned he had moonlighted on behalf of a gay-rights group. Overall the very deliberate examination of his every argument and memo and decision has revealed a more complex character than initial reports promised. The 60,000 pages of documents from his early years as a hotshot Reagan Administration lawyer that have since been made public show an ambitious twentysomething with an attitude--sometimes cautious, always confident, occasionally acid, as when he referred to the Girl Scout who wanted to sell a box of cookies to Ronald Reagan as "the little huckster." And sometimes possessed of a tart sense of humor, as when Roberts replied to a professor anxious about being blacklisted because he had lodged a complaint against a government agency: "Once you let the word out there's a blacklist, everybody wants to get on it."
For Senators preparing for his confirmation hearings next week, the challenge will be to discover how he reconciles laws and principles and precedents and his own instincts when they come into conflict. To call him conservative is not very helpful without knowing whether it applies more to means or to ends. If conservatives are inclined to respect precedent, does that include the precedents they abhor? If Congress overreaches, is the court being too "activist" by stepping in? Some conservatives care most about freedom, others about order; when the two values conflict, which one will he favor? He will try hard not to give any definite answers.
While few people expect Roberts to stumble much on his road to confirmation, the Senators posing these questions and the pro-and-con activists packing the bleachers know the show is not just about him. This is probably only the first of several Bush Supreme Court nominations. Since the betting is that this one will be confirmed, the main question is how the sides are positioning themselves for the ones to come. Democrats who indicated earlier this summer that they thought Roberts was an acceptable choice got an earful from liberal interest groups on hanging tough. Conservative counselors Jay Sekulow, Ed Meese and Leonard Leo, who advised the White House on picking Roberts, sent a memo to colleagues noting that the same kind of stories about Roberts sailing through were written more than a decade earlier about Clarence Thomas. "There is far, far too much at stake," they wrote, "for our left wing friends to sit on the sidelines." In that light, the precedent that really matters most may be the one established by Roberts' experience in the weeks ahead.
"A JUDGE MUST HAVE HUMILITY ..."