Barring unforeseen disaster, Judge John Roberts will slip into his seat on the Supreme Court in time for the fall term’s opening day. It’s been clear since the day Roberts was nominated that he would have an easy confirmation. According to the Washington Post, it’s now the official (if anonymous) position of Senate Democrats. Liberal interest groups are diligently raging against Roberts—NARAL Pro-Choice America’s embattled TV ad linking him to violent protests at abortion clinics is a strong, if misguided, example—but to little effect. The Post reports that Progress for America, a conservative group out in front supporting Roberts, now may spend less than half of the $18 million war chest it amassed for the confirmation fight.
Why the anticlimax? One reason is that behind NARAL’s roar is a deafening silence—punctuated by polite clapping—from the legal establishment’s star liberals. The Democrats in the Supreme Court bar and the upper reaches of the academy haven’t gone after Roberts. They’ve either kept quiet or given him the benefit of the doubt. Clinton Solicitor General Walter Dellinger (who has written for Slate) has praised Roberts as the most gifted oral advocate he has ever seen and publicly denounced the NARAL ad. Harvard Law School professor Laurence Tribe said that it was a “bum rap” to hold against Roberts a 1990 brief he signed, as deputy solicitor general for George H.W. Bush, that calls for the overturning of Roe v. Wade. Cass Sunstein praised Roberts’ opinions for their lack of swagger and defended a controversial one (it questioned the constitutionality of the Endangered Species Act) for illustrating Roberts’ “desire to proceed with careful attention to particular facts and arguments.” George Washington University law professor and commentator Jeffrey Rosen used prime real estate—a New York Times op-ed the day after President Bush announced the nomination—to venture that Roberts “may prove to be not only a great justice but one whom principled liberals can embrace with gratitude and relief.”
These are not words with which to torch a candidate. The left’s legal establishment has no fire in its belly in part, of course, for the same reason that Roberts has been routinely hailed as a genius pick: He’s conservative without seeming scary and ideological. As Tribe put it, Roberts “does not appear to be a crusader.” With Bush in the White House and Republicans in firm control of the Senate, what’s the point of going after this guy when he’s probably the best Democrats could hope for?
At the same time, there is a growing pile of tidbits, in Roberts’ opinions and in the Reagan-era documents dribbling out of the White House, that indicates he has strongly held and far-right views on major fronts—abortion, religion, and executive power. There’s ammunition for principled opposition to be mined here. But the key attribute Roberts lacks from the point of view of the legal liberals, at least on the record, is an overarching, burn-the-house-down judicial philosophy. As a result, proponents of judicial restraint—an approach to the law that’s become as fashionable among liberals as conservatives—are eager to embrace him as one of their own. Leftish advocates of restraint celebrate justices who don’t reach out beyond the facts of a case to decide more than they need to and who respect existing Supreme Court precedent. They wrinkle their noses at justices who overtly seek to impose a rightward agenda (Antonin Scalia) and are willing to jettison past decisions to do it (Clarence Thomas). Roberts has never declared himself one of the bad guys, Sunstein pointed out hopefully in a recent piece in the New Republic. Instead he has styled himself as deliberate, lawyerly, process-oriented. His opinions on the D.C. Circuit court of appeals “avoid broad pronouncements,” Sunstein wrote. “They do not try to reorient the law.”
Is this solid evidence that Roberts will be similarly restrained on the Supreme Court? No. But to Sunstein, it’s far preferable to evidence that he won’t be. Some liberals hold out hope that Roberts could even become the staunch advocate of judicial restraint that the court now lacks, its modern-day John Marshall Harlan or Felix Frankfurter.
Roberts’ other liberal calling card is his willingness, when he was a lawyer in private practice, to cross the partisan DMZ. Democratic D.C. lawyers don’t think it’s remarkable that Roberts spent a half-dozen hours helping his colleagues at Hogan & Hartson, his former law firm, strategize before their Supreme Court argument on behalf of gay-rights advocates in the 1996 case Romer v. Evans. Hogan was advising the lawyer arguing the case *; Roberts was Hogan’s top appellate lawyer; helping out was an act of professional courtesy. On the other hand, other top conservative lawyers (think Kenneth Starr and Ted Olson) almost certainly would never have done so. And that distinction means something, the liberals hope. “To be as good an advocate as John Roberts is may require a capacity for intellectual empathy; that is, the ability to really understand and appreciate the other side’s viewpoints,” Dellinger says.
There’s another far less charitable view of Roberts held by the legal establishment left, but it’s all off the record. Roberts’ detractors remember him as a drill-sergeant managing editor of the Harvard Law Review. And they suspect him of grooming himself ever since his student days for exactly this Supreme Court moment. In their view, all the potentially reassuring facts about Roberts are suspect—his regular praise of his mentor Judge Henry Friendly, his nods to judicial restraint, the speech he gave at Wake Forest University in February describing himself as a judge who agonizes over “the right answer.” Each statement could have been carefully crafted and planted by Roberts, quietly and effectively, in hopes of throwing legal-establishment liberals off the scent of his conservatism and drawing precisely the reaction that they’ve obligingly served up.
This theory has a problem, of course. It’s a wacko conspiracy theory. Could anyone really plot that deliberately over decades in hopes of winning a Supreme Court seat? Perhaps not. But before they continue to publicly applaud Roberts, his liberal supporters might want to treat themselves to a viewing of The Manchurian Candidate.
Correction, Aug. 29, 2005: The original text misstated the nature of Hogan & Hartson’s involvement in Romer v. Evans. The firm did not argue the case on behalf of gay-rights advocates. It provided advice to Jean Dubofsky, the lawyer who argued Romer before the Supreme Court. Return to the corrected sentence.