The Roberts nomination

Both the leftists who were gearing up to oppose President Bush's nomination of a replacement for Justice Sandra Day O'Connor, and the conservatives who were preparing to defend him (or her), must be feeling, these days, a little like the fellow who was asked to bring his harp to the party and then wasn't asked to play.

The president has blindsided them both. In naming John G. Roberts Jr. he has chosen a U.S. Circuit Court judge of almost incandescent judicial qualifications, and yet with almost no "paper trail" (of prior judicial decisions) by which his future course may be predicted. If the Democrats and their liberal shock troops elect to wage an all-out battle against him, they'll look like mean-spirited partisans whom no one can please. At the same time, the conservative movement, while entitled to feel a certain gratification at the appointment (after all, Roberts is a veteran of both the Reagan and Bush 41 administrations) is already conceding that Roberts, while broadly conservative, is not a "movement conservative" in the tradition of Antonin Scalia and Clarence Thomas.

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So what will the two sides do with the tens of millions of dollars they each amassed in preparation for this confirmation battle? Probably put them in the bank, to await other judicial confirmation struggles in the months and years ahead.

And yet, as noted recently in this column, it is precisely this particular nomination that is likely to prove the most consequential in shaping the future course of the court. If and when Chief Justice William Rehnquist steps down, replacing him with a solid conservative will not affect the balance of the Court at all. But Justice O'Connor was truly an unknown quantity, tipping the scales one way or the other in a whole series of major cases on a court that was otherwise divided four-to-four between liberals and conservatives.

If, therefore, Judge Roberts is even slightly more dependably conservative than Justice O'Connor, his presence on the Supreme Court will tilt that bench toward conservatism to an exactly corresponding degree.

Everything accordingly depends on what our intuition tells us about John Roberts. Conservatives have had some bitter disappointments with their appointees to the court (think Earl Warren, William Brennan and David Souter) and they have an understandable desire not to be burned again. But, appearances to the contrary notwithstanding, there is nothing about the air in the Supreme Court chamber that drives the justices who breathe it to become more liberal over the years. The liberal conversions of yesteryear were essentially just statistical anomalies.

There is a kind of person – we have all run into them, in school or elsewhere – who is just naturally smarter than, and otherwise superior to, most other people. Their progress through life tends to be just one effortless success after another. They do their job, whatever it is, brilliantly, and they are noticed (and rewarded) for this. They are often, perhaps even usually, well-balanced and modest.

John Roberts is such a person. Many testify to his brains, his integrity and his judicial temperament. He almost certainly isn't the type of person who would consciously connive to present the best facade as a Supreme Court nominee, so even his fortuitous lack of a paper trail that critics could use against him must be chalked up to yet another ingredient of success: luck.

The Senate will ultimately confirm him with (as the late humorist Bugs Baer once put it) "no more opposition than a fish going over Niagara Falls in the rain." Then we can all settle back and watch, for the next 25 years or so, what will probably be a course of judicial conduct that combines an innate but well-modulated conservatism with fearsome expertise, unassailable intellectual integrity, and a proper respect for the true role of the Supreme Court.