Less Hysteria, More Perspective

Judge John G. Roberts Jr. looks out as he stands with fellow judges as President Bush introduces his federal judicial appoinntments May 9, 2001, at the White House.
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

There has been way too much hysteria and not nearly enough perspective in the debate over the Supreme Court nomination of John G. Roberts, Jr. It may be a hot and steamy August, but the Beltway spinners and special-interest shriekers ought to just chill a bit.

Those on the left who have gone to DefCon 2 over Judge Roberts' record as a zealous advocate for past Republican presidents (that was his job at the time and he apparently did it extraordinarily well) are ultimately just as misguided as those on the right who are now wild-eyed over the help he provided to trial attorneys nearly a decade ago in a case involving the challenge to an anti-gay voter initiative (that was his job at that time and he again did it well enough to help convince the Supreme Court to strike down that particularly odious law).

It ought to tell you something about the paucity of the legal and political "ammunition" against Roberts that these non-starters are all that anyone has come up with as the ritualistic deflation of the nominee takes hold. Cynical partisans (and the sloppy politicians who shamelessly pander to them) have a stake in pulling the Roberts' legacy from both ends, stretching it until, they claim, it happens to fit their model of a good Court nominee or a bad one.

The truth is, however, that the more Roberts's record is stretched to left or right the less accurate it becomes in predicting for us what sort of a Supreme Court Justice he is likely to be. If he were a nasty counterrevolutionary like Robert Bork, we already would know it. If he had a troubling personal history like Justice Clarence Thomas we likely would already know that, too. He just isn't the sort of nominee who is likely to trigger a sporadic outburst of partisan conflict the Senate has seen before over Supreme Court nominees.

There are three things about the history of the Supreme Court nomination process you need to know to place Roberts' nomination into the proper context. First, the Senate has alternated over the decades between aggressively pursuing and effectively abdicating its "advice and consent" responsibilities. Second, the marbled steps of the Court are figuratively littered with failed nominees whose legal, political and personal peccadilloes tripped them up just as they were about to get one of the best jobs in the history of the world. Third, nominees less qualified than Roberts have gotten onto the court and those arguably more qualified have not. If the law isn't always a science than surely the Supreme Court nomination process isn't, either.

There has been a lot of talk over the past month about Roberts being a "stealth candidate"; that is, someone who has not written or spoken enough about controversial legal and political issues to have left a "paper trail" that can be used by the enemies of his nomination.