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Thousands of writers will produce millions of words about President Bush’s nomination of Judge John Roberts, Jr., to replace Justice Sandra Day O’Connor on the Supreme Court.  Yet, there is a central fact that other writers will miss, most because they don’t know it, a handful because they fail to see its importance.

Start with this fact in all the biographies of Roberts.  He argued 39 cases before the Supreme Court and won 25.  Some came when he was in the Solicitor General’s office, where arguing before the court is routine.  But many of them came after he left the government to spend 21 years at Hogan & Hartson, a leading law firm.

For most of the nation’s history, ending a century ago, there was a group of lawyers who specialized in Supreme Court litigation.  Some even put that on their letterheads. These private litigators, who paralleled the Solicitor General’s office in handling most of the Supreme Court cases, no longer exist.

This group had a noble heritage. Former President John Quincy Adams was one of them. The most famous of his cases was The Amistad, where he sought and won vindication for the slaves who escaped their chains, took over that ship and claimed their freedom when the ship reached Long Island.

What is the critical importance of John Roberts’ membership in this dying breed of Court specialists?

Look at the groups cranked up to oppose him.  Or, sadly, look at some of the groups lined up for knee-jerk support.  Most of these groups oppose or support Roberts because they believe he will, as a justice, rule with / against them on a single, overriding issue.

Think about that.  Most of those devoting energy and money to this, and future, Supreme Court nominations, are treating the court as if it were a giant vending machine.  Pull the correct lever, and out comes your preferred candy bar. That is exactly what’s wrong with a majority of the court today. 

Consider the Court’s most recent and clearly abominable decision, the Kelo case.  Five Justices ruled that New London, Conn. could seize private property, not for “public use,” as the Constitution says, but to turn that property over to another private owner to build a larger building and pay more taxes. Four justices dissented strongly that the court was rewriting and violating the Constitution.

Because his experience before the court is greater than any other nominee in history, when confirmed as Justice Roberts, he will not view the court as a candy machine. He will not decide merely who wins this case. He will look at the court as an institution and the Constitution as the most successful governing document in human history. He will not damage either one in the rush to get a “desired result” in the present case.

In short, the new Justice Roberts will be exactly what President Bush promised when he spoke of his possible nominations to the court.  Bush said he would choose justices who would “obey the Constitution” rather than “legislate from the bench.”

Interestingly, this point can be demonstrated by a case decided by Judge Roberts that his opponents intend to use as a weapon against him.  It was on a trivial matter, unless put it in this context: What is the role of a judge/justice in the American form of government?

The “Case of the French Fry” involved a 12-year-old girl who was handcuffed and arrested for eating french fries on the Washington Metro.  Self-evidently, the Metro police overreacted.  They should have taken away the girl’s french fries, put her out of the station and warned both her and her parents about obeying Metro rules in the future.  But the issue before Judge Roberts was whether the constitutional rights of the girl had been violated. He ruled no.

This shows that Justice Roberts understands the critical difference between doing what he considers a “good thing” and following the law including the Constitution.  This is a fine appointment for the court, the Constitution and the nation.

Let’s hear no more about “moderation.”  Do you want a moderate police officer, who arrests half of the criminals?  Do you want a moderate surgeon, who fixes half of the diseased hearts?  Then, why seek a moderate justice, who will obey the Constitution half of the time?

There will be no filibuster.  There will only be bluster.  Then solid confirmation of Justice Roberts to the Supreme Court.

About the Writer: John Armor is a First Amendment lawyer and writer who lives in the Blue Ridge Mountains of North Carolina.