John Roberts, Supreme Court nominee

John Roberts assured Nebraska Senator Ben Nelson (D) that he would not be an 'activist' judge (See: Roberts Assures Dem He Won't Be Activist). The challenge, of course, is that no one can agree or accurately describe what, exactly, an "activist" judge is. To political conservatives an 'activist' judge is one thing, to political liberals, another. Conservatives deride "activist" judges "legislating" from the bench, yet have no qualms about equally "activist" opinions that fall (or "legislate") in their favor. Liberals, for their part, fear the same "activism" from ideologically conservative justices who may upset precedents and procedures of not-insignificant import.

One of the issues that rarely gets discussed is that what judges do is, by definition, "activist" in nature. Ours is the inheritance of a Common Law system, and judges, by definition, must 'judge' upon appropriate courses of action. The judiciary is not subsidiary to the legislative or the executive, just as the legislative and executive must co-exist and co-operate with the judiciary. The three-pronged approach has served us well in this country, and must continue to do so. Judges must rule and make decisions when there are questions of law and/or questions of constitutionality. It is what they do. To call a judge "activist" for doing her job puts an accuser on thin ice; while there is certainly room for legislative guidance, a robust, independent judiciary remains an important part of our republican form of government.

As for Mr. Roberts' nomination, I predict that he will win confirmation in the Senate. President Bush appears to have made a shrewd choice in selecting him to replace Justice O'Connor: impeccable credentials, no immediately-inflammatory background or history, and -- seemingly at least -- a genuine, nice fellow. It will be interesting to learn more about him and to gauge public reaction as confirmation hearings get underway.

When Justice O'Connor announced her resignation, I thought the President likely would choose a nominee that would not be an immediate lightning rod of controversy and contention. Ideologically conservative, to be sure, John Roberts does not inspire the ire that other choices may have. That said, should President Bush have occasion to name a second nominee to the high court (Chief Justice Rehnquist claims he isn't going anywhere yet, but who knows what the next few months/years may hold), it is entirely plausible President Bush may name someone more polarizing.

I also must admit to wondering about the timing of the announcement: Karl Rove's role in the Valorie Plame (sp?) - CIA leak deserves continued scrutiny. From a PR perspective, the Roberts announcement was a brilliant means of diverting attention from Rove and the White House to the Court and the nomination process. I won't claim that that's the only reason the White House announced when it did, but it certainly didn't hurt, that's for sure.

It's been a long time since the last Supreme Court appointment, and will be interesting to watch the process as it continues to unfold.

Also, for SCOTUS watchers out there, an interesting new book on Justice Harry Blackmun, reviewed here.