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It Takes an Establishment

From the August 1, 2005 issue: At some point the radicals need assistance, support, and reinforcement from establishment conservatives--like John Roberts.

Aug 1, 2005, Vol. 10, No. 43 • By WILLIAM KRISTOL
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IT TAKES AN INSURRECTION TO change a country. It takes an establishment to govern one. Conservatives want both to change and to govern America. Thus we need our dissatisfied, troublemaking, occasionally splenetic, sometimes raffish anti-establishmentarians. After all, without brave resistance and bold insurrection on the part of conservatives, liberal orthodoxy and institutions would still dominate American life.

But insurrection isn't enough. At some point, the radicals need assistance, support, and reinforcement from establishment conservatives--individuals ill-suited to insurrection but well-suited to rising through the institutions and moving them gradually but meaningfully in a conservative direction. Thus, we need our sober, calm, and respectable establishmentarians. Conservatives also need to be able to put together majorities--in public opinion, in Congress, and on the courts. The conservative tent therefore has to be a big one. As a Supreme Court justice, John Roberts will be an important (and, we trust, happy) camper in that tent.

Roberts is no Bork, no Scalia, and no Thomas. He's probably more like the man for whom he clerked, Chief Justice Rehnquist--or the man Rehnquist replaced, John Marshall Harlan. A court with, so to speak, five Scalias would be fun. But it won't happen. A court with a majority made up of some Scalia-Thomas types and some Rehnquist-Harlan types is possible. Indeed, with his choice of John Roberts, President Bush has begun to create such a court, one heading towards a constitutionalist majority.

When he nominated Roberts, Bush said that Roberts will "strictly apply the Constitution and laws--not legislate from the bench." Despite its boilerplate nature, this one-sentence description actually seems to be a pretty good summary of how Roberts approaches judging. And in practice, this kind of precise judicial legalism, grounded in real respect for the Constitution and the law, will tend to move in the same direction as a more ambitious and more theoretical constitutional originalism: After all, how often on big cases did Rehnquist differ from Scalia or Thomas?

The early assaults on Roberts from the left could barely disguise the fear lurking in the breasts of the attackers. Democrats are on the spot. If most Democratic senators vote to confirm Roberts, yielding to his stellar credentials, then they will have established the precedent that a conservative who neither commits himself to upholding Roe nor endorses its underlying rationale ought to be confirmed. If they vote against Roberts, then their opposition to the next appointee will be discounted--they're simply against anyone likely to be nominated by this president.

Let's not lose sight of this, either: Merit is a conservative principle. Selecting a first-class nominee, and refusing to bend to political expediency, is a conservative act. In this respect, the nomination of Roberts sends a signal that Bush understands the Court matters, and that on things that matter, he will rise to the occasion and scorn identity politics.

Bush is also taking the long view. According to the White House account of Tuesday's events, President Bush ducked out of a lunch for Australian prime minister John Howard to call Roberts to offer him the job. When Bush stepped back in, he said, "I just offered the job to a great, smart, 50-year-old lawyer who has agreed to serve on the bench." Notice the "50-year-old." Roberts's youth was on Bush's mind. He wanted an appointment that could help mold constitutional law for a long time to come.

There's been a lot of intelligent commentary on Roberts--some in newspapers, more on the web. One of the most interesting comments came from a lawyer in his mid-30s, Brad Joondeph, on the liberal website Joondeph describes his experience as a summer associate at Hogan & Hartson 12 years ago, when John Roberts was his official "mentor." He recalls of Roberts that "he could not have been nicer, more gracious, more encouraging. He offered mentoring advice to a snot-nosed, 24-year-old law student as if it were the most important part of his job." Then Joondeph tells this anecdote:

"After returning to Stanford that fall, I was lucky enough to have my student note published in the Stanford Law Review. It was a rather presumptuous and self-righteous critique of the Supreme Court's decision in Freeman v. Pitts, a school desegregation case from DeKalb County, Georgia. I argued that the Court was pulling the rug out from under Brown v. Board of Education by prematurely ending court-ordered desegregation remedies. As deputy solicitor general in the first Bush administration, Roberts had actually argued the Freeman case as amicus in support of the school district. I therefore (again, fairly presumptuously) sent him my note, in which I contended that, well, Roberts had been all wrong.