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Wednesday, July 20, 2005

Optimism on Roberts

Posted by on July 20 at 11:18 AM

The NYT’s Linda Greenhouse, one of the smartest Supreme Court watchers in America, makes a compelling case for being optimistic about Roberts, for now.

Now the question is whether Judge Roberts, if confirmed, will, like those two justices [Scalia and Thomas], commit himself to recapturing a distant constitutional paradise in which the court was faithful to the original intent of the framers or whether, like the justice he would succeed, he finds himself comfortably in the middle rather than at the margin.

His résumé suggests the latter, as does his almost complete lack of a paper trail. There are no flame-throwing articles or speeches, no judicial opinions that threaten established precedent, no visible hard edges.

To the extent that as a judge he has expressed a limited view of federal power, that is consistent with the views of Justice Sandra Day O’Connor, whom he is being named to succeed, and would not change the balance on the court.

His views on abortion remain to be fleshed out, she admits. But she sees him as the type of person who, like O’Connor, could evolve over decades on the court into a more thoughtful and liberal voice. The key, she says, is his reverence for the court and modern law.

Justice O'Connor moved indisputably to the left during her 24 years on the court, not in every area of its docket but in some of the most important ones, like affirmative action and abortion. Justices Scalia and Thomas have, by contrast, scarcely changed at all. What accounts for the difference, and what might be the experience of Judge Roberts, who, now age 50, would be likely to serve for 25 years or more?

There is no conclusive answer. But observation suggests that the answer begins with how a justice feels when entering the building each morning (typically not by walking up marble steps but by driving into an underground garage). Is that justice entering a battleground, or coming home?

Roberts, she says, feels the later.