Senators should probe
nominee Roberts’ jurisprudence


President Bush has nominated U.S. Circuit Judge John Roberts to be a U.S. Supreme Court associate judge.

JUDGE John Roberts possesses the demeanor and legal record ideal for a justice of the U.S. Supreme Court, as well as the staunch conservatism desired by President Bush. While impressive, his career shows few insights into his judicial philosophy, and thorough Senate confirmation hearings are necessary to give Americans a better idea of his views.

Bush could not have found a nominee with a more impressive résumé than Roberts. A former law clerk to Chief Justice William Rehnquist, he served two presidents, was a top appellate gun for a prestigious Washington law firm and has been a federal appeals judge for two years. In private practice he appeared before the Supreme Court on 39 occasions, winning 25 times.

Roberts would fill a position vacated by Sandra Day O'Connor, whom President Ronald Reagan considered a conservative but who became a swing vote between liberal and conservative factions. O'Connor remained a strong advocate of states' rights during her tenure but moved to the left on social issues such as affirmative action and abortion.

While Roberts is unquestionably a conservative Republican, having served in the administrations of Reagan and the elder George Bush and been active in the Federalist Society, he has not divulged his views on specific issues. Nor is he likely to answer such inquiries at his upcoming confirmation hearings, but his judicial approach and personal ideology should be examined. He is 50 years old and could remain on the court for three decades or more.

After being nominated to the D.C. Circuit Court, Roberts was asked by senators about his help, as deputy solicitor general in the first Bush administration, authoring a brief urging the high court to overturn the abortion ruling in Roe v. Wade. He responded that he considered it improper "to infer a lawyer's personal views from the position taken on behalf of a client."

One of Roberts' clients as a private lawyer was the state of Hawaii in the case of Rice v. Cayetano, in which the court ruled adversely that the state Office of Hawaiian Affairs' restriction of voting for trustees to native Hawaiians was racially discriminatory. As in the abortion case, that does not indicate how Roberts would feel about Hawaiian sovereignty if the Akaka Bill were enacted and then challenged in court.

When he was asked in a Senate questionnaire three years ago to list his 10 most significant cases, Roberts included the Rice case, even though the Supreme Court ruled against him. We can only wonder why; he might have regarded the decision as a partial victory because the ruling was sharply confined to the OHA elections and did not address broader issues.

Unless some sort of bombshell emerges, Roberts is likely to emerge from the confirmation process able to withstand Democratic concerns about his conservatism; that is the president's prerogative. At this point, Roberts' sterling legal credentials, analytical abilities and geniality provide solace that he will not become an inflammatory cohort of Justice Antonin Scalia.

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