From the WSJ Opinion Archives
THE NEXT JUSTICES
A New Era
John Roberts takes his seat. What lessons did his confirmation teach?
Today, with the president who appointed him in attendance, the 17th chief justice of the United States will robe and take his high seat as the first among nine equals. John G. Roberts Jr. is expected to preserve the whimsical stripes on his robe introduced by his mentor, the late Chief Justice William Rehnquist. He will honor traditions new and old. But yesterday, he and President Bush, along with other justices, judges and dignitaries, participated in a tradition older still.
Since the 13th century in London, Paris and Rome, and in Washington since 1953, the commencement of the judicial year has been celebrated by Catholic lawyers and judges in what is called the Red Mass. Yesterday the assembled at St. Mathews Cathedral, the sacred space where both Rehnquist and John F. Kennedy were sent to their final rest, applauded as an American president accompanied a Catholic chief justice to the Red Mass for the first time.
This pageant of crimson red is as close as church and state can possibly come in the nation's capital, and the event is followed invariably every year with protestations by the secular left, especially when, on occasion, the bishop in the pulpit looks down upon the several Supreme Court justices gathered below and reads them a gracious and loving variation of the Riot Act. Not so this time; the archbishop of Washington spent his opportunity by calling upon the powerful, all seemingly Republicans, to be civil and nonpartisan. Still, one wondered what the new chief justice thought as he was invited to pray for the "inalienable right to life."
As John Roberts honors tradition, his recent nomination process was replete with newly established precedents and deflected partisan tactics. It is now established that Senate hearings and a vote should be held in a timely manner, that not all privileged Justice Department documents are open to inspection by voracious opponents, and, most important, that a nominee should not answer every question asked by a senator. The next nominee's hearing will, hopefully, be free of boorish debate among senators as to what brilliant questions they can properly ask a nominee. The Roberts precedent is now well established: The nominee determines for himself what is appropriate to answer. Putting aside the debate over questions may give us a deeper exchange on substantive issues than we saw in the Roberts hearings.
The Roberts hearings also saw liberals in retreat from litmus tests. No one dared to ask Mr. Roberts the simple question "Are you pro-life?," even while almost every senator was concerned with the issue of Roe v. Wade by any other name. And with two exceptions, Mr. Roberts was not put to a religious test.
Outside the Senate, partisans and activists lost ground. They have cried wolf too often now, in voices too shrill to be credible much longer, if at all. Americans, and the media that shape their opinion, are now also better informed. We know, for example, if we paid attention, that what liberals mean by "judicial activist" is a judge who determines that Congress overstepped its constitutional authority and strikes down a law that liberals like, while conservatives mean a judge who rewrites the law (or the Constitution) as he wants it to be.
Still there is something left unachieved by the Roberts confirmation. A Republican president has yet to erase the stigma of the Robert Bork hearings and the David Souter nomination. The nomination of John Roberts has not rid us of the repugnant situation that a jurist with a clear and distinguished record will not be nominated for higher service. Judge Roberts's nomination did not rid us of the apprehension of stealth nominees. In nominating Judge Roberts, President Bush made a brilliant choice. On the eve of the next selection, we remember Ronald Reagan's selection of William Rehnquist, and we wonder whether this president is also able to make a brave choice.
Now John Roberts is chief justice. We can have great confidence in how he thinks and the influences of his life. As a political conservative and a constitutionalist, it is not likely that he will do harm. Only history will know whether he is courageous enough to repair the harm that his predecessors have done. Will he favor this clause over that one, this right over that right, liberty over life? Will he understand that a Supreme Court solution that brings strife rather than settlement is no solution at all? No one really knows. Not even Chief Justice Roberts.
This is my 35th and final column on the Roberts confirmation. It was a great honor to tell this story for the readers of OpinionJournal.com. Every column, of course, was made better by editors, to whom I am very grateful.
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues.
