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Go Ahead And Bet The Ranch

Attorney Andrew Cohen analyzes legal issues for CBS News and

Go ahead and bet the ranch that John G. Roberts, Jr., will be approved by the Senate and become the next Associate Justice of the United States Supreme Court. Nothing so far in his academic record, legal history, or judicial temperament over a half century of life suggests that he can be "Borked" into submission by his political or legal opponents.

Roberts is President George W. Bush's gorgeous opening drive off the tee; starting down the center and to the right but still on the mark to hit the fairway's sweet spot. Roberts has all the right conservative credentials without the firebrand temper, potty mouth, or careless paper trail that doomed some of his predecessors.

He is enough to the jurisprudential right to satisfy most of the President's roiling base but not so far to the right that he can adequately be characterized by the left as a kook. After all, this is a man who told the Senate a few years ago (when he was confirmed without dissent) that Roe V. Wade is the "settled law of the land."

He is the Establishment personified: Harvard College, Harvard Law School, a clerkship with Justice William H. Rehnquist, and a job at the Solicitor General's office. He was a millionaire lawyer in private practice and gave it up for a spot on the bench worth less than $200,000 per year. Noblesse oblige, indeed.

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Click here to listen to Andrew Cohen talk more about Roberts' professional history.

If this weren't the 21st Century, guys like me would be calling Roberts a "wise man" or perhaps even one of the "best and the brightest." He is a Washington insider who now will be judged by Washington insiders. If he is "outside" the legal mainstream, as the mantra goes, than so is the entire Republican caucus and the tens of millions of voters who put them there. It all depends upon what the definition of "mainstream" is, right?

It's hard to see where Roberts' opponents will be able to gain any traction against him before and during the looming Senate confirmation hearing. Environmental groups say he is not respectful enough of the Endangered Species Act - and that he even made fun of a hapless toad!

But no Senator is going to scuttle a nomination over a federal statute that just about everyone in Washington (and beyond) ignores anyway. Ask Christie Todd Whitman, the former Republican head of the EPA, what Congress and the White House think of the environment, the EPA and all those nice federal laws no one enforces anymore.

Abortion rights? What more do you want the guy to say other than Roe is the "settled law of the land"? I suppose that abortion rights activists would want him to say that he will never entertain the notion of overturning Roe and its legal progeny but no judge worth his or her salt would ever make such a blanket statement.

What about Roberts' ardent advocacy against Roe when he was with the Solicitor General's office? What about it? The lawyer was arguing what his client told him to argue, whether he agreed with it or not. Happens about ten thousand times a day in America.

Roberts worked for Kenneth Starr, the former Independent Counsel and Clinton pursuer who represents the third rail of legal politics. Can Roberts be taken down via guilt by association? I don't think so.

Because Roberts is a big business guy? Compared with whom? The fat cats in Congress? The genius of this choice by President Bush, at least in the short term, is that Roberts' legal profile is not profound enough, or at least profoundly offensive enough, to generate the sort of massive momentum you need to scuttle a nomination. And it's not even close.

That's the short-term good news for the President. What's the mid- to long-term prognosis? Hard to say. The White House hopes that the second Justice Roberts - the first Justice Roberts, Owen Josephus Roberts, was appointed by President Hoover in 1930 and served until 1945 - is as reliable a conservative vote as the President's legal heroes, Justices Clarence Thomas and Antonin Scalia. And Justice Roberts II may very well deliver the goods.

But he very well may not. In his first public appearance after being tapped by the President, Roberts immediately offered a pronounced nod to the history and traditions of the High Court. I'm surprised the President didn't wince when he heard those words.

Presidents don't want their Supreme Court nominees to absorb too much of the "history and tradition" of the Court because when they do, they end up thinking for themselves as the independent co-equal branchers they are. It has happened over and over again through the Court's history, culminating, at least for now, with Roberts' predecessor, Justice Sandra Day O'Connor, who is ending her Supreme Court career as a very different jurist from the one who began it.

With apologies to Tom Hanks (and the writers of "Forrest Gump"), picking a Supreme Court justice is like opening a box of chocolates: you never know what you're gonna get. Indeed, part of the grand drama of the process upon which we are about to embark is the notion that the wisdom of the choice only will become known after time, perhaps a great deal of time, perhaps even a generation from now.

These sorts of decisions by a president thus are not just political and legal decisions for the short term; they are decisions with impact that may resonate through decades, even centuries.

Today we still talk about the Dred Scott slavery case. We still talk about Brown v. Board of Education. We still talk about Chief Justice John Marshall and the case of Marbury v. Madison, which sent the federal judiciary upon its way as an independent branch of government. And 100 years from now, if we don't blow ourselves up, our descendents will talk about Bush v. Gore and Roe v. Wade.

To Roberts, who argued before the High Court 39 times before applying for this job, now falls this cumbersome mantle of history, perspective, continuity, precedent and responsibility. Upon Roberts, a former Supreme Court law clerk already steeped in the Court's lore and lure, now falls the weight of the ages and with it the burden of making rules the rest of us must live by.

It's a job that goes well beyond the political power, prestige, and beliefs of the man who offers it. By making his choice, one of the most important he'll ever make as chief executive, President Bush now has largely ceded control over the outcome. Sure, his operatives now will plot with their supports to ensure Roberts' nomination. But the President now has lost control over the candidate himself.

Once Roberts is affirmed, he no longer can or will be beholden to the man who gave him the job. He will be his own man, free to chart his own path through the thicket of the law.

Indeed, the nation needs him to grow into his job; needs him to cut the very ties that got him to where he is today. Becoming a Supreme Court Justice may mean never having to say you are sorry. But it also means you have have to strive to rise above the political froth that churned out your name in your time.

Roberts may be precisely the sort of Justice that President Bush hopes he will be. Or he may be another David Souter, Anthony Kennedy or Sandra Day O'Connor, all of whom were less (or more) than their patrons bargained for.

The irony, of course, is that disappointing the guy who gave you the job doesn't necessarily mean you end up being a disappointing Justice. Just ask Lady Justice herself, the soon-to-be-departed Justice O'Connor, who rides off into the Western sunset as popular and revered as ever despite a recent string of rulings that would have popped President Ronald Reagan's hair out of place.

Remember that nice tee shot by President Bush, the one that started off just to the right of the fairway? Well, over time, those shots have a way of bending back to the middle before they are done.

So the end game has begun. Between now and early September political artists of varying degrees of skill and sense will try to create their own portraits of Roberts. He will be cast as a sinner and a saint, a dupe and a foil, a cop-out and a fail safe. He will be all of those things to all of those people and in the end, none of it will matter.

Soon enough, before the first Monday in October, Roberts will almost certainly become part of the Gang of Nine, the most exclusive and powerful working group in the country. He will be accountable to no one and nothing, save his own conscience. He will hold with his vote the power to change the lives of millions of people. He will be given a trust that few have held and even fewer have earned.

The late, great Supreme Court Justice Oliver Wendell Holmes, Jr. once said of the Constitution "it is an experiment, as all life is an experiment." The "experiment" that is John Glover Roberts, Jr. begins today, the first day of the rest of the young judge's life.

By Andrew Cohen

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