CHARLOTTESVILLE , Va. — John Roberts is one of the very best lawyers in America.  That is unquestioned, as are his personal integrity and his impartiality as a judge. That is the beginning of the case to confirm Judge Roberts.

Precedent, dear to lawyers, also supports confirming him.  The two most recent appointees to the Court, Justices Ruth Bader Ginsburg and Stephen Breyer, were also eminent lawyers, nominated by a President whose party controlled the Senate.  

Both Breyer and Ginsburg had taken stands on policy issues — Breyer as a professor and senior Senate staffer; Ginsburg as a professor and public interest litigator.

And Ginsburg differed substantially from the Justice she replaced, Byron White, and so was expected to, and did, shift the voting balance on the Court in important areas. Despite those possible sources of controversy, Ginsburg and Breyer were confirmed with little opposition.

Most important is that Roberts is committed to the rule of law.  As a judge, he sees the Constitution and laws as providing rules with which he may or may not agree, but that are the choices made by the people and their representatives that judges must enforce.

Just how important that is can be seen by paying attention to the attacks on Judge Roberts that have begun and will escalate.  They have been and will be almost exclusively about policy bottom lines, about what the law should be, not about what it is.

If John Roberts is confirmed, we will be told, very bad things will happen.  His opponents will make it sound as if he is running for the Senate, as if the question is whether he supports this right of the people or that power of the federal government.  Is he pro-life or pro-choice?  Where does he stand on affirmative action?

The difference between the law and what is desirable will not feature in the attacks.  No group will take out ads saying that the Constitution permits something very unjust, like taking people’s houses and giving them to developers, and that John Roberts must be defeated because he denies that the Constitution permits this bad thing.

Whether Judge Roberts really does care more about the law than about the who wins and who loses on the bottom line is a proper question.  But who will win and who will lose on the bottom line is not the right question for a candidate for the Supreme Court.  It is the right question for a candidate for the Senate.  Not only is it the wrong question, but making the bottom line the issue can take us further toward being a country in which nominations to the courts really are just like elections for the Senate, a country in which judges are chosen because they favor or oppose drilling for oil in the arctic.  That would be a terrible way to run a government.  We would have policy being made by the least democratic process, the judicial process.  John Roberts has been nominated to the first Supreme Court vacancy since 1994. Eleven years is a long time between elections, and life tenure, which Justices have, is too long for legislators.  If the Supreme Court becomes nothing more than a legislature, because nominations are treated like elections to a legislature, it will be a legislature that does a very bad job of representing the people.

Policy matters for legislatures, not courts.  If a Senator asks Judge Roberts whether he will protect workers, the best answer is that whatever laws Congress decides to pass to protect workers, he will enforce as written, neither more nor less.  Power to make law and responsibility for the laws made do not belong with judges.  Keeping that straight  is the rule of law, and that is what we can expect from John Roberts.

PROBLEM ISN’T ROBERTS PER SE, BUT BUSH’S DEMAND THAT NOMINEES PASS A POLITICAL LITMUS-TEST

COLUMBUS — 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 an African-American nominee, did not look for the most highly qualified African-American. 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 is a member of the Federalist Society, an ultra-conservative lawyer organization. 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 appeal 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 fifty per cent. 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.