TCS Daily

An Inspired Choice

By Ilya Shapiro - July 20, 2005 12:00 AM

WASHINGTON -- I am honest-to-goodness shocked. What's more, along with pretty much every pundit out there, from the talking heads on CNN and Fox News to the blogosphere's pajamaheddin, I have quite a bit of egg on my face.

We didn't think he could do it. We didn't think that President Bush could transcend his big-government feel-good politics and nominate somebody in the Scalia-Thomas mold -- precisely the opposite of specifically picking the first Italian-American justice, or a black man to replace Thurgood Marshall. No, the President destroyed the patronizing conventional wisdom that O'Connor's was a "woman's seat." He defied the identity politics that prescribed adding a "minority" to the highest court in the land.

The President ignored the conservative critics, who were ankle-biting him for even considering his well qualified -- if ideologically wobbly -- good friend, Attorney General Alberto Gonzales. He stared down the liberal pressure groups, who were pushing Ed Prado of the Fifth Circuit Court of Appeals, or Judge Ricardo Hinojosa of the Southern District of Texas, or even Judge Sonia Sotomayor of the Second Circuit (a Clinton nominee, for godsake!). He even brushed aside the inside-the-beltway politicos, who were sagely advising the President to pick someone dependable of lesser profile who would fly under the radar screen, someone like Edith "Joy" Brown Clement of the Fifth Circuit.

Instead, on July 19, 2005, George W. Bush selected John G. Roberts of the D.C. Circuit to be the newest Supreme Court justice for the very best of reasons: that Roberts was the very best of candidates.

Yes, the President proved us all wrong, made us all look foolish to have doubted him, to the point that Senator Chuck Schumer (D-NY) was left to grumble only about Judge Roberts's short record after only two years on the bench. And to spit out that he had previously voted against Roberts -- in committee; the full Senate confirmed Roberts by unanimous voice vote. (Teddy Kennedy on Robert Bork this was not.)

The one cloudy lining to all this silver is the fate of Edith Jones. Alas for Judge Jones, next in line to be the Chief Judge of the Fifth Circuit, it is possibly too late to ascend to the top rung of her profession. Having been passed over in favor of David Souter in 1990 -- in what has to go down as the most tone-deaf, bone-headed, tragically significant move in the history of judicial politics -- Judge Jones has become the darling of the Federalist Society crowd, not to mention a "Superhottie of the Federal Judiciary" (according to the judicial gossip blog, Underneath Their Robes).

She is, at 56, still within the age bracket from which Presidents choose so as to make the most lasting impact on the Supreme Court, but the window of opportunity is narrowing. Not known for pulling her verbal punches, Judge Jones would likely have been more controversial than Judge Roberts, what with her long paper trail of opinions and shrewd judicial temperament. And what an inspired (and inspiring) choice she would be to fill Chief Justice Rehnquist's gold-striped robe -- which many had expected to be the one reserved for Roberts (or for fellow non-traveling Judge Michael Luttig of the Fourth Circuit).

In any event, President Bush deserves nothing but praise and respect for the wisdom that he has shown in filling the first open slot at One First Street in eleven years. I will let others analyze Judge Roberts's qualifications and fisk his legal writings, but suffice it to say that, on the basis of the record before us (and before the Senate), the only agenda the man is pursuing is the advancement of the rule of law. He is, put simply, unassailable.

Now on the task at hand the President must not relent, must not rest on his laurels lest they become wreathes. It is time to confirm Justice-select Roberts -- and his successor on the D.C. Circuit Court of Appeals.

Ilya Shapiro, who last year clerked for the inspired E. Grady Jolly of the Fifth Circuit, writes the "Dispatches from Purple America" column for TCS. His last piece detailed the silly season of American politics.



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