Thursday, July 21, 2005

Once again, President Bush has confounded his critics by doing what he said he would do. He has nominated to the Supreme Court someone he believes will not make law from the bench, but interpret laws in light of the Constitution as the Founders wrote it.

D.C. Appeals Court Judge John Roberts has been in his current post just two years. Confirmed to that position by a unanimous voice vote in the Senate, Judge Roberts won’t get that sort of treatment this time around. Liberal senators, like Democrats Patrick Leahy of Vermont and Charles Schumer of New York, will try to pin down Judge Roberts on cases such as Roe v. Wade as to whether “settled law” can be overturned. If it can’t, the United States might still be practicing racial segregation, even slavery.

While Judge Roberts’ judicial record is somewhat thin, it is not as thin as Sandra Day O’Connor’s was when President Reagan nominated her in 1981. As a lawyer in the administration of President George H.W. Bush, Judge Roberts helped write a brief that said, “We continue to believe that Roe was wrongly decided and should be overruled.” Liberals will point to that statement as evidence he would overturn Roe. Supporters say he was merely one of several lawyers arguing for the administration position.

Judicial philosophy is at the heart of any Supreme Court nomination. It is Judge Roberts’ philosophy Republican and Democrat senators will want to probe. Democrats mostly want justices who will advance their narrow social policies for them, while Republicans mostly want someone who sticks to the Constitution and lets Congress do the lawmaking.

Shannen W. Coffin, a former Justice Department official and expert on constitutional and appellate litigation, wrote an essay for National Review Online that offers some insight. Mr. Coffin said Judge Roberts is not a “bench activist. He understands that courts cannot — and should not — seek to solve every social problem our country faces. As a judge, he has demonstrated a healthy respect for the rule of law, deferring often to the will of the people as reflected in the laws enacted by Congress and signed by the president.”



If confirmed, Judge Roberts will be sworn in, possibly with his hand on a Bible, and asked to pledge his devotion to the Constitution. Liberal Senate Democrats and the numerous liberal advocacy groups will demand he swear an allegiance to Roe v. Wade if he expects to sit on the court.

Should Judge Roberts seek allies on the left for his presumed opposition to Roe, he might quote Edward Lazarus, a former law clerk to Justice Harry Blackmun, who wrote the majority opinion in that most controversial of cases.

Mr. Lazarus, who supports the outcome of Roe, opposed the way the case was decided. He has written on writ.findlaw.com, about the lingering problems of Roe v. Wade: “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. … The problem, I believe, is that it has little connection to the constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history or precedent.”

Exactly. Mr. Lazarus sums up his evisceration of Roe this way: “The proof of Roe’s failings comes not from the writings of those unsympathetic to women’s rights, but from the decision itself and the friends who have tried to sustain it. Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the … 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” (Italics added).

Like abortion itself, Roe is a symptom of something far deeper. Mr. Bush touched on it some months ago when asked if he favored outlawing abortion. He said he didn’t think the country was “ready for it.” In that simple statement, the president showed how such things as abortion reflect a culture’s loss of moral direction and a desire to focus on self rather than others.

The Supreme Court can help change that direction as it has in cases involving race, voting rights and open housing. While no one can be certain how a judge nominated by a Republican president will turn out (witness Justices O’Connor, Anthony Kennedy and David Souter), and one can be equally certain how a judge nominated by a Democratic president will rule (witness Ruth Bader Ginsburg and Stephen Breyer), the nomination of Judge John Roberts to the Supreme Court appears likely to move the court back in the direction of the Constitution and away from the judicial free-lancing that has not only produced bad law and equally bad reasoning but has divided the country and contributed to a breakdown in civility.

If he is confirmed, how Judge Roberts thinks and rules will go a long way to determining the legacy of George W. Bush.

Cal Thomas is a nationally syndicated columnist.

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