Will George Bush be seen historically as the George Patton — or the George McClellan — of the culture wars? That question endures.
For with his nomination of John Roberts to the Supreme Court, the president consciously chose to avoid battle with the Left. As he did not want a fight, Bush named a conservative without a single scar from the culture wars and no record of having served. He chose an establishment-conservative, not a warrior-conservative.
Judge Roberts is a man of high intelligence and integrity, and an accomplished advocate who has argued dozens of cases before the Supreme Court. Educated in all-boys Catholic prep schools, he attended Harvard and was the managing editor for the Harvard Law Review. He clerked for William Rehnquist and did a tour of duty in the Reagan White House. His resume has Supreme Court candidate written all over it. He even looks like a Supreme Court justice, right out of central casting — and he ought to and almost surely will be confirmed.
But is he the kind of conservative who will roll back court decisions that represent nothing more than the imposed will of previous justices? Faced with questions such as whether Roe v Wade was wrongly decided, will Roberts confirm "settled law"? Or has he the convictions of an Antonin Scalia, a William Rehnquist or a Clarence Thomas, to re-examine and reverse settled law that violates the Constitution? Will he look to precedent or back beyond precedent to the original intent of the Founding Fathers?
We do not know. For neither Roberts’ resume nor his brilliant career provides conclusive evidence. For there is simply no record of his having ever, in 30 years in the law, rolled up his sleeves and plunged into any social or ideological brawl over issues like affirmative action or religious rights.
Having lost the White House and Congress, what the Left seeks today is a holding action, a "conservative" justice who will vote to confirm and consolidate the gains the Left has made through the courts. Sandra Day O’Connor is the kind of conservative they seek, a jurist who votes to ratify and conserve liberal precedents.
Roberts’ wife has made a statement by joining "Feminists for Life," but Roberts never joined the Federalist Society of conservative lawyers. We are being reminded of that. In congressional hearings he has said the arguments he made in the solicitor general’s office of Bush I represented the government’s views, not his own. Supporters point out that as head of litigation at Hogan and Hartson, Roberts represented liberals as well as conservatives.
Thus, it is not unfair to say George W. Bush has appointed a stealth conservative. He will not legislate from the bench, but there is no evidence he will overturn laws the Warren Court and its progeny legislated from the bench. Yet, as he is clearly a conservative, and no liberal, it is the Left that is fearful, while on the Right there is unease.
President Bush must know that his legacy is at stake in how Roberts votes. Whether he succeeds in reshaping the court — where Ike, Nixon, Ford, Reagan and his own father all failed — now depends on Roberts. If he joins the Scalia-Thomas-Rehnquist wing, conservatives will praise the Bush nomination forever. If Roberts goes wobbly, as O’Connor and Anthony Kennedy did, the president will be seen as having failed.
For Bush the stakes could not be higher. For even with O’Connor’s departure, Chief Justice Rehnquist at 80 and ailing, and Justice Stevens at 85, he is not likely to get more than three nominations before his time is up. To remake the court, all three must be in the Scalia-Thomas mold. One mistake and all is lost.
Which makes one wonder whether Bush truly wishes to roll back the Warren Revolution or to fight these culture wars.
For there were any number of potential nominees — Edith Jones of the Fifth Circuit, Michael Luttig of the Fourth (whose judicial records were stronger than Roberts’ and whose battle scars as warrior-conservatives were immensely more impressive) — who were passed over. Though their nomination would have ignited a battle — one the president would win — about them, there would have been no doubts.
One wonders, why did the president not choose one of them? Why did he decide not to fight? Why did he not draw the line in the sand with his first nomination? Is this as conservative a candidate as we are likely to get? Are the rumors true that, after Roberts, comes Alberto Gonzales?
Will George W. be seen in retrospect as a Reagan conservative — or his father’s son when it comes to naming justices and fighting the culture wars? Within a year, we will have the answer.
Sign up to the Human Events newsletter