Roberts the Elder

John Roberts has an understated personality, but his record will be all torpedo.

As John Roberts sits down before the Senate Judiciary Committee this week, its members will be searching to better understand the man who would become the 17th chief justice of the United States. If history is any guide, they will learn little about who John Roberts is and even less about who John Roberts will become. The problem with confirmation hearings is that, even with a forthcoming nominee, they offer only a snapshot of a jurist before he or sheenters the rarified and mind-altering world of the country's highest court.

Senators have learned that a strange metamorphosis can occur in the walk over the east Capitol lawn to the Supreme Court building. In that short expanse, reliable conservatives have been known to transform into raging liberals, and vice versa.

Senators will, therefore, struggle with the need to know the unknowable: To paraphrase the Beatles, "Will you still need me, will you still please me, when you are 64?"

President George W. Bush announcing the nomination of John Roberts for Chief Justice, September 5.
photo: White House photo by Paul Morse
President George W. Bush announcing the nomination of John Roberts for Chief Justice, September 5.

Only 50, Roberts will be assuming the position of Chief Justice as a relative puppy among his older colleagues. As a result, Roberts could be on the court for decades. Oliver Wendell Holmes served until he was 90; current associate justice John Paul Stevens will be 86 in October. Indeed, if Roberts stays on past 84, he could surpass the 34-year tenure of the great John Marshall as chief justice.

Predicting what Roberts will look like as a jurist at 64 or 84 is no easy task. The usual bachelor's method for seeing the future effects of aging—checking out the mother—is hardly available here. Traditional forms of divination are equally unavailing. Oneiromancy (the divination of dreams) requires disclosure of Roberts's dreams, which would immediately be claimed as privileged by the White House counsel's office. Physiognomy (divination by the appearance of the face) would also come up blank. Since he was nominated, Roberts has adopted a perfectly Buddha-like appearance that denies any hint of emotion or recognition. Even goat entrails would trigger widespread protests from animal rights activists before anyone could read them.

This leaves perhaps the most historically unreliable method: predicting the future by studying the mosaic of past statements, opinions, and memoranda from the nominee. Past confirmations offer little assurance that any such prediction would rate above a random selection. History, including recent history, is replete with cases of mistaken identity. Consider but a few:

Earl Warren: President Dwight D. Eisenhower appointed Warren as a reliable conservative. After all, as the Republican governor of California during World War II, Warren supported the internment of Japanese Americans and maintained a tough-on-crime posture. He went on to lead perhaps the most liberal court in the history of the country.

William J. Brennan: Eisenhower appointed Brennan as a conservative Democrat. After all, Brennan had worked as a lawyer at the Pentagon, lobbied as a lawyer against pro-labor laws and regulations, and been put on the New Jersey Supreme Court by a fellow Republican. He became arguably the most liberal justice of the 20th century—and the second of what Eisenhower called his two biggest mistakes as president, Warren being the other.

Byron White: President John F. Kennedy had only one nomination during his presidency, and he picked his brother Robert Kennedy's trusted deputy attorney general, Byron White. White turned out conservative on most issues, dissenting in Roe v. Wade and upholding anti-sodomy statutes directed at homosexuals.

Harry Blackmun: President Richard Nixon thought he had appointed a tough conservative from Minnesota in Harry Blackmun, as did most commentators. Indeed, Blackmun was called one-half of the Minnesota Twins with conservative chief justice Warren Burger. He went on to write Roe v. Wade and to join the left wing of the Court.

John Paul Stevens: President Ford looked to Court of Appeals judge John Paul Stevens to move the Court to the right. After all, Stevens was viewed as at least a moderate conservative and his opinions seemed to confirm that view. But after his more famous colleagues Brennan, Marshall, and Blackmun left the bench, Stevens would become the patriarch of the Court's left wing.

Sandra Day O'Connor: President Ronald Reagan wanted two things in a nominee: a reliable conservative and a woman. His aides identified a little-known former state legislator from Arizona, Sandra Day O'Connor, as just the ticket. She became a continual thorn in the side of conservatives, the swing vote that repeatedly blocked her more conservative colleagues in areas like abortion and affirmative action.

David Souter: When it came time for the first George Bush to nominate a justice, his chief of staff, John Sununu, said he had hit a "home run" for conservatives in a little-known New Hampshire jurist named David Souter. It turned out to be a foul ball for the right as Souter quickly assumed a position on the Court's left wing.

When White House lawyers tell scary stories to their children at night, these are the dark characters that fuel the horror. Indeed, these experiences are so raw and so recent that it is ludicrous to suggest the White House is taking another blind leap of faith with John Roberts. To the contrary, Roberts is only unknown by design.

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