The Columnist Manifesto

My favorite line about the Supreme Court nominee, Judge John Roberts, is from The Daily Show:

After all the speculation about naming a woman or minority, President Bush has nominated a white guy. He's very white. If he came in a box, it would be labeled: "contents: one white guy."

A Supreme Court nomination is a time when professors of constitutional law get to step out from under our rocks and into a bit of limelight. But, while we are well qualified to correct certain technical misapprehensions about how the Court works or what precise issues it is deciding, we really don't know much more than anyone else about the answer to the question everyone wants to know. We can't really predict what kind of justice he'll be.

I mean, he'll be conservative, but how conservative?

It's more fun to speculate about whether he's really a closeted gay man (see here and here). When I mentioned to B that one of the most compelling pieces of evidence on that subject was that he played "Peppermint Patty" in the school production of You're a Good Man Charlie Brown, the following dialogue ensued:

B: Oh, come on. It was an all boys school! Who else was going to play Peppermint Patty?
Oscar: Um... some other gay guy?

Althouse says that the Roberts nomination shows little "w" distinguishing his presidency from his father's because he didn't engage in tokenism by replacing O'Connor with a woman jurist (in contrast to Bush, Sr. who named Clarence Thomas to replace Thurgood Marshall.) There's a superficial similarity to Bush Sr.'s other nomination, David Souter, a man with a somewhat inscrutable political track record who's "lifestyle" (unmarried middle aged man living with his mother) also prompted "he's gay" speculation.

But it would be foolish to think that Roberts could turn out to be as liberal as Souter. One big difference between then and now is that The Federalist Society machinery has reached maturity -- alumni of this well-organized, well-funded conservative law student organization are now far enough along to run things -- and they are in a position to give a thorough vetting to judicial nominees. I don't think they had as much influence in the senior Bush administration; in any event, David Souter was not their guy. As a protege of G.H.W. Bush's top advisor, John Sununu, Souter was outside "the system" and essentially leapfrogged over the Federalist Society vetting machinery.

For me, the real question about Roberts is whether his nomination came from "within the system" -- was he proposed by Federalist Society types, is he one of them -- and it looks like the answer is yes. His track record as a justice department litigator, as a point man to argue the positions that recent Republican administrations have taken to appease the religious right, point in this direction.

The only hope for us liberals is that Roberts has been cagily angling for this Supreme Court job his whole professional life: In other words, that his litigation stances and lower court decisions have been designed to express views consistent with those who would nominate him to the high court, and that he has kept his own (hoped for) more moderate views in the background.

To describe that scenario as "hope" sort of makes me sick.

Yet it's hard for me to get worked up about the Roberts nomination because, let's not forget, this is only the first year of Bush's second term. Rehnquist will retire shortly after this confirmation process, and Bush will get to refresh that conservative seat with younger blood. And unless John Paul Stevens can hang onto his job until 2008, which seems unlikely, Bush will be able to replace that liberal vote with a conservative one.

So I'm afraid that the good ship "Hope" sailed last November.

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