The Right Coast

July 20, 2005
Is Roberts one of us?
By Tom Smith

Here's a view from a cite I regard as sorta red meat conservative, as opposed to the highly nuanced, subtle and downright smarty-pants conservatism familiar to readers of the RC. I admit that after my initial pleasure at the Roberts nomination, I am now having some qualms. Without doubting the guy is God's gift to oral advocacy, I wonder, is he or ain't he, conservative that is? Ann Coulter, who speaks her mind, notes that in a long career, he seems never to have said anything that could be considered controversially conservative. I noticed that on NPR last night, Doug Kmiec was very careful in his praise of Roberts. What he said was that Roberts was a very, very careful lawyer, and he said it with a worried voice. Well, that's nice. Carefulness is good. But is he, for example, an originalist? What does he think about the usual lineup of great acts of judicial legislation?

You don't have to be a cynic to see Herr Rove's handprints all over this one. Here is a blue chip nominee neither Bush's enemies nor his supporters will be able to suss out until it's too late. Very clever. Perhaps too clever.

I think I may have opined before on the dangers of nominating careerists to the Court. The danger is, once on the Court, the only way to go up, which is what careerists do, is to maximize your esteem in the eyes of the commentariat, and your power by putting yourself in the middle, in that ol' swing vote chair. As I have read more about Roberts, my fears have grown, not shrunk. But then, I'm a pretty paranoid sort of guy. (Do you have CBN suits in your garage? I do! Why not? They're cheap!) So what we may have here is just a really smart version of Kennedy or O'Connor, to the extent that is not a contradiction in terms.

OTH, maybe Roberts really is that rare bird, a stealth candidate who is really a conservative. It's possible. Fantastically unlikely, but possible.

I also agree with Coulter and Polipundit that being vouched for by true blue conservatives means less than nothing. Conservatives tend to be trusting. Conservatives stop and help people fix a flat (What would Jesus do?); liberals drive by and feel guilty about it; leftists drive by and explain the conspiracy among big rubber companies. If we had a vote for every conservative that vouched for Souter and Kennedy, we would be living in rule of law paradise by now.

A MORE cautiously optimistic view here. So maybe Roberts will be another Rehnquist? Maybe. But as I recall Rehnquist had made his bones in Arizona and there wasn't much doubt he was a committed Republican when he was nominated.

HAPPY conservatives here. I hope they're right. Though clerking for the late Judge Friendly is very prestigious, it's not a conservative credential. Not like clerking for, say, Scalia. To get a Friendly clerkship, you had to be annointed by former Friendly clerks turned professors at Harvard or Yale law school. My impression at Yale was that it was a case of Federalist Society members need not apply. Roberts was at Harvard before the birth of FedSoc. So . . . who knows. Conservatives would not be having these worries if Judges Luttig or McConnell had been chosen.