Steve’s last posting deals with two kinds of issues, one timely and the other timeless.

The most timely issue on this front is the nomination of John Roberts. The great irony here is that the apparent strength of his support led his diehard opponents to take a very hard line against him as a member and representative of that extreme right-wing group known as—you guessed it—Reagan republicans. That kind of argument can gain traction in cases like Robert Bork’s where there were public lightning rods to which everyone could respond: The remarks about the “unsurpassed ugliness” of the civil rights laws on public accommodation; the firing of the special prosecutor. But for Roberts the charge is only that if we knew more then we would be truly horrified, which is a form of scare-mongering that is weak in general and wholly inappropriate in this case.

Why the last point? Because we do know something about his intellectual style. Roberts was a lawyer who hung out a shingle to attract clients. The first rule in that line of business is to keep a low profile. Taking strong positions on public issues will bring you very little new business, especially as a one-shot appellate lawyer. Ordinary business types don’t want to have to explain why they chose a lawyer who said or believed X. Hence one learns to separate out cases, avoid conflicts, and keep the door open to a list of unknown clients on all sorts of different issues. And to do that you have to think like that: You have to believe that distinctions matter and that general theories are suspect. That kind of person is not a suitable target for charges of ideological extremism because it is utterly inconsistent with his overall habits of work that survive even after he leaves the bar and joins the bench.

Hence it is the critics that look to be outlandish. Not only are they wrong in what they say about Roberts, they are also wrong about their substantive issues. So Senator Leahy wants to talk about the immense progress in civil rights. Not so if one thinks of this supposed outcome as a function of legal remedies against discrimination, which have had little or no ability to raise wages or increase job access. But there has been an enormous advance, notwithstanding the skeptics, in race-relations largely because so many individual citizens and firms have taken it as their mission to work hard on just these issues. The civil rights laws have done little to help them by beating them over the head, and limiting their options.

So the attacks will fail: they say nothing ill about Roberts and nothing favorable to the people who launch them. But this gets back to term limits, which I support in principle. I would love to see him on the Court, and just as happy to see him leave by 68 or 70. I agree that there are other opportunities that vigorous ex-justices could take, but, unlike Steve, I don’t think for the most part that politics is one of them. And if it is, let them pursue it. The decision of Charles Evans Hughes to run for President in 1916 was critical in many ways, but his past service on the Supreme Court was not one of them. And besides anyone can resign to pursue politics right now, which they won’t (because none of them could, if they tried). So I keep to the proposal that it is good across the board to shuffle the deck on frequent occasions. To me the only risk is the difficulty of making sure that the amendment process does not careen out of control. On this one I would take it. I’ll get back to the challenge of Justice Stevens and the timeless Constitution in a future posting.