Confirm Roberts.

Byline: The Register-Guard

Too bad John Roberts can't serve on the Senate Judiciary Committee as well as the U.S. Supreme Court. In three days of testimony last week, he showed a better understanding of the law and the courts than anyone in the room - while also displaying a talent for courtesy and precision that committee members would do well to emulate. The Judiciary Committee should endorse Roberts' nomination as chief justice on Thursday, and a bipartisan majority in the full Senate should then confirm him.

The composition of the Supreme Court was among the biggest issues at stake in the last presidential election. President Bush explicitly promised to nominate conservatives to the federal courts, and many Americans voted for him for that reason. The president would have broken faith with those voters, and betrayed his own ideas of what's best for the country, if he had strayed from the right side of the political spectrum in filling the first Supreme Court vacancy in 11 years. Democrats who are holding out for some Republican version of William O. Douglas are engaging in fantasy.

But there is more than one variety of conservative. Bush has spoken of his admiration of two Supreme Court justices, Antonin Scalia and Clarence Thomas. Scalia is the leading exponent of an originalist approach to the law, in which judges look to the meaning of the Constitution at the time of its ratification. Roberts made it clear that his conservatism is of a different flavor. Such words and phrases as "liberty," "unreasonable" and "due process," he said, must be adapted to the context of our times.

While rejecting Scalia's fundamentalist approach, Roberts' respect for precedent, the rule of law and the system of checks and balances was made clear throughout the hearings. Roberts believes the Constitution gives the courts the power to block Congress and the president when they overreach. But Congress has the authority to pass bad laws, and the president has the power to make bad decisions, within the confines of the Constitution.

Moreover, Roberts said, a judge must be willing to uphold policies he finds wrongheaded so long as they are not constitutionally defective. The remedy in such cases is not for the courts to change the laws, he said, but for voters to change the politicians who make them.

Roberts was broadly characterized as being vague or evasive in his testimony. Senators of both parties were visibly frustrated by their inability to pin him down on specific cases and points of law. But the committee members knew perfectly well that judicial nominees should not state how they will rule on particular cases. By doing so they would give parties coming before the courts reason to believe their cases had already been decided. Roberts went further, explicitly refusing to give the appearance of promising to rule one way or another in exchange for committee members' support.

At the same time, Roberts' ideas about important legal matters were made clear. He accepted the development of a constitutional right to privacy over the past 80 years. He made only weak commitments to civil liberties and church-state separation. He expressed respect for precedents in the areas of gay rights, affirmative action and religious freedom.

The committee and the public could have obtained a deeper understanding if the Bush administration had not refused to release memoranda that Roberts wrote while serving in the solicitor general's office. But the hearings provided a well-rounded idea of who Roberts is and how he thinks. The president chose well, first nominating Roberts to succeed Sandra Day O'Connor and then to replace the late William Rehnquist as chief justice.

By opposing Roberts, Democrats would tell Bush that they'll oppose anyone he nominates. They'd invite Republicans to express blind opposition to any future Democratic president's nominees. Oregon Sens. Ron Wyden and Gordon Smith should join their colleagues in giving Roberts bipartisan support. Bush would get a clear message: For the O'Connor vacancy, send us another nominee like this one.