Given a night to sleep on it and a bit more research, here are my initial thoughts on the nomination of John Roberts for the Supreme Court. First, let me note that there are different meanings to the word “conservative” in this context. Robert Bork, Antonin Scalia, Clarence Thomas, Michael McConnell and Alan Keyes are all labelled “conservatives”, yet there are wide differences among them on such basic issues as the role of the Declaration of Independence in constitutional interpretation, the importance of stare decisis, and whether legislative history is relevant to interpreting a statute. Conservatives are not a monolithic group of one mind on everything and to treat them as such is to oversimplify and distort reality. And in my view, some of them are worth opposing and some are not.
Scalia, for example, has been pretty solid on civil liberties. He joined the majority in the decision that legalized flag burning, and he issued a stinging rebuke of the Bush administration concerning their claim to be able to suspend habeas corpus in specific situations without an order from Congress. Robert Bork, on the other hand, has argued that the first amendment should protect only explicitly political speech, not literary, scientific or artistic speech. In this regard, I would argue, one is far more justified in opposing the latter than the former. And this is but one example.
I have often distinguished between intellectual conservatives and what I commonly label partisan or pedestrian conservatives. It certainly appears to me that John Roberts belongs in the first group. He is by all accounts thoughtful, brilliant, independent minded, and decent. The fact that he has won the almost universal respect of his fellow legal scholars who would oppose him ideologically carries a lot of weight with me. There was no doubt that Bush was going to nominate a conservative, and there’s no doubt that the Senate will confirm a conservative for the court. The question is, what kind of conservative? Roberts looks a lot more like a Clarence Thomas conservative than a Robert Bork conservative. And that’s okay with me.