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The Safe Pick

Conservatives hoped for a demonstrably conservative nominee with a streak of daring. They didn't get one.

11:39 PM, Jul 19, 2005 • By FRED BARNES
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PRESIDENT BUSH kept his promise in nominating John Roberts, a federal appeals court judge, to replace Justice Sandra Day O'Connor the Supreme Court. Since Bush first announced for the presidency in 1999, he has vowed to name judicial conservatives who will interpret the law rather than legislate from the bench and fabricate new rights. Roberts, the president's first Supreme Court pick, qualifies as a judicial conservative, or as Republican Sen. John Cornyn called him, "a mainstream traditionalist." His confirmation will nudge the court to the right. And confirmation appears highly likely.

But there's more to the Roberts choice than that. In choosing among judicial conservatives, there are safe picks and risky picks. With Roberts, Bush took the safe route. Related to this, there are cautious judicial conservatives and bold judicial conservatives. The president tilted to the cautious side in naming Roberts.

How safe was the pick? The answer is very. This is partly because of his impressive credentials as a brilliant legal scholar and man of solid temperament and character. More important, he's already been tested in the Senate and passed muster. In 2003, his nomination to the U.S. Court of Appeals for the District of Columbia sailed through the Senate Judiciary Committee on a 16-3 vote. He cleared the full Senate on a voice vote. If you are committed to choosing a genuine judicial conservative, it doesn't get much safer than Roberts.

Bush had the opportunity to take a riskier approach. His list of possible nominees included a number of federal judges who would have faced truculent opposition by most Senate Democrats and by the liberal groups allied with them. These included Judges Michael Luttig of the 4th U.S. Court of Appeals and Edith Jones of the 5th. Confirmation of either would have been difficult and involved a nasty and bitter clash between Republicans and Democrats. Still, they'd likely have been confirmed. The hearings and debate on Roberts are expected to be kinder and gentler.

More than any decision in Bush's second term, conservatives around the country have been focused on what he'd do when faced with a Supreme Court vacancy. Their hope was for a demonstrably conservative nominee with a streak of daring. In Roberts, they didn't get one, at least from all appearances. He's an establishment conservative, respected as a private attorney and admired as a judge. Audacious he is not. On the other hand, there's little concern that he might drift sharply to the left as Justice David Souter, nominated by the elder President Bush, has.

The Roberts nomination didn't prompt conservatives to jump for joy, though he was widely praised. Cornyn called him a "solid pick." Republican Sen. Tom Coburn of Oklahoma offered no praise at all. He said the Senate must examine Roberts' "loyalty to the Constitution and its strict construction." Sounding a bit like Democratic Sen. Chuck Schumer of New York, who is sure to spearhead the opposition to Roberts, Coburn said senators have the right to ask "any appropriate question."



Social conservatives were hoping for more. No doubt they'll line up in support of Roberts when Democrats like Schumer and groups such as People for the American Way begin to attack him. But they dream of the day when there are five votes on the court to reverse the 1973 Roe v. Wade decision, which legalized abortion. Now there are only three. Is Roberts likely to join a anti-Roe bloc on the court? Probably not.



Fred Barnes is executive editor of The Weekly Standard.