Judge John Roberts of the U.S. Court of Appeals for the District of Columbia Circuit, whom President George W. Bush has nominated to take the place of retiring Associate Justice Sandra Day O’Connor, is what we used to call a “lawyer’s lawyer.”  He comes from  Harvard College, Harvard Law School, the Harvard Law Review, a clerkship for one of the most brilliant federal court of appeals judges, Henry Friendly, and a clerkship on the U.S. Supreme Court with then-Associate Justice William Rehnquist.  While in practice with the “white shoe” Washington firm of Hogan and Hartson, Roberts was one of the most prominent barristers before the U.S. Supreme Court and was said to be so good that current clerks would abandon their memo writing just to hear him.

Those who knew Roberts when young, those who went to law school with him, and those who practiced with him all seem to agree that this is a person of truly exceptional talent, yet one of much humility.  This is a combination almost unknown in Washington, and, while his nomination was quickly savaged by such left-wing groups as People for the American Way and MoveOn.org (who feared he might vote to overturn Roe v. Wade), Democrat senators, once they got to meet the man, were remarkably kind to him.  Sen. Charles Schumer of New York, who has done more than anyone to politicize judicial confirmations, noted that Roberts grew up in Buffalo and was, like Schumer, a Bulls fan.  Schumer’s judiciary committee colleague Richard Durbin (D-IL), normally not-much-less-savage than Schumer, praised Roberts because he, like Durbin, “hated bullies.”  Sen. Edward Kennedy (D-MA), former scourge of Robert Bork, huffed and puffed and, like his fellow Massachusetts solon John Kerry, said that Roberts would still have to satisfy the Democrats that he would not turn the Court in dangerous directions.

Unfortunately for the Democrats, however, their last two successful Supreme Court nominations, Ruth Bader Ginsburg and Stephen Breyer, stoutly maintained at their confirmation hearings that it would be inappropriate to predict how they might rule as justices, and there is no reason why Roberts is not going to be able to follow their example.  The question on the mind of conservatives is whether Roberts, who had a very thin record as an appellate judge (he was only on the bench for two years) will be another “stealth nominee,” like David Souter, and whether he will veer to the left if appointed.  He had, after all, in his confirmation hearings for the Court of Appeals, indicated that he had no problem upholding Roe v. Wade, which he described as the settled law of the land.

Still, those on the Supreme Court are not bound by previous precedent, and abortion foes have been cheered by the fact that, as a government attorney, Roberts had signed a brief (correctly) suggesting that there is no proper constitutional basis for Roe and that it ought to be overturned.  Most remarkably, Roberts had actually maintained in the 2003 confirmation hearings that he believed it to be the job of a judge to follow the will of the people as expressed in the Constitution and laws, and not to legislate.  If he is true to his word, then President Bush will have carried out his campaign promise to bring the Court back to the point where the Framers wanted it.  O’Connor was a “swing” justice, and Roberts, taking her place, just might move us back toward a government of laws not men.