Smart, measured, mostly unknown

In November 1954, the U.S. Catholic Welfare Conference, precursor to the U.S. Conference of Catholic Bishops, held its annual meeting in Washington. Of chief concern was the lack of Catholics on the Supreme Court. The “Catholic seat” on the court had been vacant since the death of Justice Francis P. Murphy, a Franklin Roosevelt appointment. The bishops’ chief dealmaker, New York’s Cardinal Francis Spellman, was dispatched to the White House to discuss the situation with President Dwight Eisenhower.

Ike recalled the meeting in his diary: “At the moment 150 bishops of the Catholic church are holding an annual meeting in Washington. The attached is a draft of a resolution [urging appointment of a Catholic to the court], which a group of these bishops intended to introduce on the floor to seek its approval by the assembly. Before doing so they brought it to Cardinal Spellman, who emphatically objected to any such procedure, saying that he thought the matter was sufficiently serious that he should bring it to my attention. He also said that he assured the bishops that their concern was unjustified so far as this administration and me personally were concerned. At the same time, this paper does show the acute sensitiveness of particular groups in the United States in this matter of what they consider to be proper and equitable representation on all important governmental bodies, especially the Supreme Court.”

In 1956, the bishops’ petition was answered when Eisenhower appointed William Brennan to the court, though Brennan’s subsequent record on church-state separation and abortion left some bishops to regret having their prayers answered.

Which leads us to Supreme Court nominee John Roberts. Is he, as President Bush asserts, a “strict constructionist” who will interpret the law as written instead of “legislating from the bench”? Or another Brennan, Warren, O’Connor, Souter, Kennedy? All justices who failed to perform according to script.

The answer, “Who knows?” is obvious. We expect it will remain unanswered until sometime after he takes the bench.

What do we know about Roberts? First, he’s smart. Harvard College in three years and then on to the law school where he edited the Law Review. He’s experienced, having taken a traditional route (clerkships, government service, high-powered law firm partner, federal judge) to the court.

Next, by all accounts, he possesses “judicial temperament” -- that elusive mix of judgment and personal style so valued by Americans.

It is no surprise that he is conservative. With a Republican president and a nearly filibuster-proof Republican Senate majority, it would be silly to expect anything but a conservative. It has become clear in these recent overheated months of culture war scenarios that the label “conservative” is as inadequate a descriptive as “liberal.” There are all kinds of conservatives and the ones who have grabbed most of the headlines lately have often been the loudest or the most extreme or those who are best at manipulating religion to their political ends or some combination of the above.

Roberts seems none of these. He has a reputation for being fair-minded and thoughtful, not inflammatory. More likely to shed light than heat on a given subject. A grownup.

And, though not overtly partisan, we also know that Roberts is political. It appears that he, at a relatively early point in his career, realized that the Supreme Court was not an out-of-the-question career prospect. In the post-Bork era that meant not creating the kind of paper trail of writings and speeches that haunt those who tackle controversial issues or take provocative stands.

Just over a decade ago, President Bill Clinton offered New York Gov. Mario Cuomo an appointment to the court. Cuomo, a veteran of political campaigns in which he took controversial stands, an author of memoirs that would have come back to haunt, a long-time interlocutor with the press who made his share of enemies, took a pass.

Today, the political wells are so poisoned in this country that anyone who has taken a personal political stance, who has advocated a position not as a hired gun but as a committed participant in the political debates of a republic, is now suspect. Whether by design or by dint of personality and career path, Roberts seems to have avoided being identified as passionate about any single issue or particularly partisan in his politics.

As a result, the campaign for which interest groups on all sides of the political spectrum have girded may not be nearly as intense as anticipated.

Some things go almost without saying: Roberts deserves a thorough examination of his record. Tough questions about his view of the law are in order. Does he believe in a constitutional “right to privacy”? Will he continue to give carte blanche to an executive branch that tramples on civil liberties in the name of protecting us from terrorists? And much more.

To his credit, President Bush has made a serious selection for a difficult job and his nominee deserves serious consideration, not the partisan bickering and name-calling that marked so much of the run-up to the Roberts nomination.

We’ll soon see if the U.S. Senate is up to the task.

National Catholic Reporter, July 29, 2005