By JOHN B. QUIGLEY
COLUMBUS, Ohio -- The problem is not John Roberts. The problem is the president's approach to judicial appointments.
For better or worse, the Constitution gives the president unfettered discretion to pick nominees for the federal courts, subject only to approval by the Senate. Ideally, a president looks to the universe of qualified persons and chooses the best, subject perhaps only to considerations of diversity.
That ideal probably has never been reached. Politics plays a role. However, the two Bush administrations have used the process overtly to find ideological bedfellows.
A nominee's position on abortion became a "litmus test." George H.W. Bush, seeking a black nominee, did not look for the most highly qualified black. He looked for the most conservative among possible nominees.
President George W. Bush fully understands that he is in a position to change the Supreme Court with this nomination. Sandra O'Connor, in many of the court's most controversial cases, has in effect been the court. The other judges, four to a camp, would split their votes, leaving O'Connor as the arbiter.
Now with an opportunity to appoint a conservative, Bush can turn the court sharply to the right. Roberts came to prominence as a lawyer in the Justice Department in the first Bush administration, arguing, as he did, the conservative positions of that administration to the courts.
If Roberts were one Bush nominee among many of varying political stripes, his nomination would not be objectionable. But Bush is appointing only judges of Roberts' political stripe. The two Bush presidents have already moved the federal judiciary significantly in a conservative direction. The District Courts and Courts of Appeals are left with few moderates or liberals.
In some countries of the world, the executive appoints judges from among a group nominated by a nonpartisan commission. The executive has the final say, but its discretion is circumscribed in the interest of identifying the most highly qualified, regardless of political persuasion.
No system of judge selection is perfect, but the one our Constitution uses is, unfortunately, subject to abuse, particularly when the executive and the Senate are controlled by the same political party. When the president can count on the Senate to rubber-stamp, the Senate ceases to act as a check on the president's discretion.
That is why the Democrats have fought so hard to preserve the filibuster. Without it, they have no way to oppose nominees brought by a president who seeks only judges of a particular ideology.
The Republican leadership depicts these efforts of the Democrats as anti-democratic, but the filibuster here works as a last-ditch corrective on judicial appointments.
Of course, were the Senate to defeat the Roberts nomination, President Bush would likely find an equally conservative replacement. Senators may feel that they are powerless to force the president to cast his net more widely.
Retiring Justice Sandra O'Connor has objected that a Roberts nomination reduces the number of women on the court by 50 percent. The Supreme Court, by its gender and ethnic composition, is hardly reflective of the United States as a whole. That kind of diversity is as important as political diversity.
With juries, one is entitled to a jury of one's peers, meaning a jury drawn from the public at large, not just a particular segment. It should be no less with judges. If the bulk of the federal judges are drawn from those who hold extremist views, the courts will not reflect the society in which they play a crucial role.
X John B. Quigley is a professor of law at Ohio State University. Distributed by Knight Ridder/Tribune Information Services.