Passing judgment, continued The scramble to pigeonhole Supreme Court nominee John Roberts misses the point

If the eminent-domain case did not expose the limitations of "conservative"-versus-"liberal" labels, then the medical-marijuana case surely did. The votes of liberal justices, invoking the federal government’s power to regulate interstate commerce, were essential to the 6-3 vote upholding federal anti-drug warriors’ assault on California’s statute legalizing the prescription use of marijuana for certain medical conditions. And Justice Scalia, normally an opponent of a broad interpretation of federal power under the commerce clause, allowed his culturally conservative distaste for mind-altering drugs to infect his view. Dispelling the notion that conservatives vote in bloc, medical marijuana’s most principled and consistent ally was Justice Thomas, who wrote with moral and legal clarity that "the majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill."

If categories such as "liberal" and "conservative" are not often useful in predicting how a judge might decide a case, what does distinguish a worthy candidate from an unworthy one? The most important information to obtain about a Supreme Court nominee may be whether the candidate is a decent person with human instincts, or a rigid ideologue who, faced with two possible principled outcomes, is not moved to the outcome that reduces human suffering or palpable unfairness. Is the candidate sufficiently flexible to allow the realities of modern life to influence the application of principle where there is legitimate wiggle room? As one of the nation’s highest arbiters of justice, will the nominee likely grow increasingly considerate of the complexity of the issues and plights of people put before him?

READING ROBERTS

How might a Justice Roberts deal with such crucial areas as the role of existing precedents in such current civil-liberties areas as abortion and gay rights? Roberts is currently an intermediate appellate judge strictly bound by Supreme Court precedents. If elevated, however, he would have power to change precedents, even though traditional conservative principles dictate following precedent except where clearly erroneous. If Roberts is a principled traditional conservative, one cannot with assurance predict that he would vote to overrule Roe v. Wade rather than follow it as a flawed but still viable precedent.

Roberts’s admittedly meager record, especially on abortion, has at times been mercilessly taken out of context. Liberal critics point to Roberts’s suggestion that the Solicitor General’s office take the position in a brief to the high court that Roe v. Wade was wrongly decided and should be reversed. Yet Roberts took that position as a lawyer for the avowedly anti-choice Reagan administration. A lawyer’s job is to craft the best argument in support of his client’s position, not his own. More recently, during his confirmation hearing to the Court of Appeals for the D.C. Circuit, Roberts remarked that he deemed Roe the law of the land, for the decision had become deeply rooted, by then, as precedent. In this way, Roberts revealed that though he may be unwilling to expand the reach of Roe, he could well refuse to overturn its core ruling.

Even more revealing is an experience Roberts had while a partner in the Washington law firm Hogan & Hartson. As part of the pro bono (that is, free) work he performed as a member of the firm, Roberts helped prepare lawyers for Supreme Court oral arguments in probably the most consequential gay-rights case to reach the high court yet, Romer v. Evans. At issue was the constitutionality of a voter-approved Colorado constitutional provision that would have denied gay people as a group the coverage of state and local civil-rights laws. If, for example, laws were enacted to provide for equality in the rental of housing, municipalities would be forbidden from adding sexual orientation as a protected classification. Had this state constitutional provision survived, any state constitution could be amended to invalidate all gay-rights statutes and regulations.

The lawyers opposing the anti-gay amendment sought Roberts’s expert advice in preparing for oral argument of this complex constitutional challenge. Roberts’s coaching in moot court almost certainly helped gay-rights attorneys win an unexpectedly healthy 6-3 victory. As one of the court’s leading conservatives — Justice Kennedy — wrote for the majority, the Colorado constitutional provision "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else" and thereby "deems a class of persons a stranger to its laws." This is not a case where Roberts’s participation can be attributed to professional obligation to advance his client’s position, since the gay-rights group was not his client. Critics suggest that Roberts assisted out of intellectual interest. But one cannot honestly say that a hard-core, ideologically rigid, culturally conservative, or homophobic lawyers would have volunteered for this task. (Can one imagine, for example, Justice Scalia doing so while a law professor?)

REACHING A VERDICT

Perhaps the most relevant question, considering the larger issues of representative government at stake, is: what were Roberts’s most vociferous critics expecting from a Bush White House nomination? Someone with Earl Warren’s understanding of how the criminal-justice system can be unfair, cruel, and slipshod? Hugo Black’s absolutist’s respect for the First Amendment’s free-speech guarantee? Maybe William Brennan’s sensitivity to government’s failure to accord fair procedures to citizens? Or Thurgood Marshall’s concern for the plight of the disadvantaged? Are we not better off with a nominee who might be, but probably is not, a wolf in sheep’s clothing, rather than an Edith Jones, a wolf in wolf’s clothing? Are we not better off taking a chance that John Roberts is a jurist predisposed to formalism but also a decent man who has the capacity to grow into the job as other decent conservatives have over the years?