Editorial: A serious undertaking

Thursday, July 21, 2005 | 9:22 a.m.

Federal appeals court Judge John Roberts, whom President Bush has nominated to fill a Supreme Court vacancy created by Justice Sandra Day O'Connor's retirement, has impressive legal credentials. Roberts was a lawyer in the Reagan White House and served as deputy solicitor general in George H.W. Bush's administration. He later was a successful private lawyer. All told, the 50-year-old Roberts has argued 39 cases before the U.S. Supreme Court and won 25 of them. Since 2003 Roberts has served on the U.S. Court of Appeals for the District of Columbia Circuit, often referred to as the second-most important court in the nation. Friends and professional associates of Roberts -- Democrats and Republicans -- also credit him for his civility.

Roberts, at first glance, would appear to have what it takes to easily pass Senate confirmation. But career accomplishments and a genial personality only count for so much when someone is seeking a lifetime appointment to the most powerful court in the nation. More important is a Supreme Court nominee's judicial philosophy -- and there are some significant questions regarding Roberts in this area. Right now, because Roberts hasn't been a federal judge for a long time, his judicial record is thin. It is uncertain if he is in the mold of O'Connor, a mainstream conservative, who often was the swing vote on consequential cases, including upholding a woman's constitutional right to an abortion.

With respect to abortion, Roberts' views aren't clear. As deputy solicitor general in the first Bush administration, Roberts argued in a 1991 brief to the U.S. Supreme Court that the landmark abortion case, Roe v. Wade, "was wrongly decided and should be overruled." But Roberts, in his 2003 confirmation hearing on his nomination to the federal appeals court, said that in 1991 he simply was advocating for his client -- the administration. Roe v. Wade is "the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent," he testified in 2003. The critical issue today, however, is this: Would Roberts, as a justice on the U.S. Supreme Court, still view Roe v. Wade as settled law or ripe for overturning?

Senators should probe Roberts' judicial philosophy as to how it relates to a host of other areas as well. The next Supreme Court justice could be the swing vote on a number of issues, including free speech, religious freedom, police powers, the environment and privacy rights. If confirmed, Roberts would have an opportunity to set the course of the court for decades, affecting the lives of all Americans.

Democrats, taking the lead from Senate Minority Leader Harry Reid of Nevada, were cautious in their initial assessment of Roberts, noting that during confirmation hearings they will be able question Roberts about his judicial thinking.

As this confirmation process goes forward, caustic statements from the left or cheerleading from the right won't add any insight. Democrats and Republicans alike in the Senate should undertake this responsibility with all the seriousness that it deserves. We look forward to learning more about Roberts.