July 22 (Bloomberg) -- John G. Roberts Jr. is an inspired choice for the U.S. Supreme Court, so much so that the highly touted and heavily funded opposition is genuinely flummoxed.

Upon meeting Roberts -- I worked with him in the Reagan and first Bush administrations -- one is immediately impressed by the warmth of his personality and his complete interest in you. His pleasant manner is matched, or exceeded, by his intelligence, which manifests itself not in showy or know-it-all pretension, but in a great capacity to listen, and therefore understand, the most complex matters.

Roberts has had the confidence of two presidents to handle such matters, first as an associate White House counsel and then as deputy solicitor general of the U.S. Few have appeared before the high court more often or more successfully.

Of course, no nominee can be expected to sail through a confirmation without some objection. So who opposes the Roberts nomination?

Frankly, those on the right or left who expect policy outcomes to emanate from the court, as if it were some junior varsity Congress. Alexander Hamilton and the founding generation anticipated the judiciary to be the ``least dangerous'' of the three branches, because, they reasoned, judges were to resolve specific cases or controversies, not dispense advice as moral oracles.

Reserving Judgment

New York Senator Charles Schumer and others are reserving judgment on the nomination until they can get some answers on Roberts's positions on the great issues of the day. That is the Senator's prerogative, though Roberts should not indulge him.

Every member of the Senate, of course, should make responsible inquiry into the nominee's qualifications. But no member of the Senate should succumb to the drumbeat of special interests insisting that Roberts serve up a batch of pre- determined political outcomes.

What Roberts brings to the court is a lifetime of study and practice vindicating the structure of the Constitution, including a restrained conception of the judicial role and a respect for the federal branches and the states.

A Search for Injury

Consider the case of Lujan v. National Wildlife Federation in 1990, concerning the government's decision to open 4,500 acres of public land to mining activity. Roberts argued, and the court decided, that it was inappropriate for the justices to intervene since the only ``injury'' stated was a vague assertion that members of a wildlife group had a prospective interest in using land in the vicinity of a 2-million-acre mountain range.

Injury, in this case Roberts contended, cannot simply be presumed.

But why not? Why not have federal judges standing by 24/7 to allow anyone and everyone who disagrees with a government policy to challenge them broadly in court? The answer is obvious: because no policy then -- favoring mining or hiking -- would ever reach conclusion. Public decision making would be tied up in knots, leaving the law uncertain, promoting neither economic investment nor personal reliance.

Even more fundamentally, for Roberts, this type of sweeping judicial activism would not fit the design of our constitutional democracy. In the Lujan case, he was an advocate for the U.S. Department of the Interior, but his advocacy vindicated a fundamental constitutional principle: the separation of powers.

Separate Powers

To effectively separate power, however, a judge must have a well-formed conception of what activities are appropriate to legislatures, to executives, and to courts. Roberts does, and he helped the justices secure what the court, itself, called a legal ``landmark'' -- namely, that those coming into court must have an injury that is concrete and specific, not conjectural or hypothetical.

To some, I'm sure, this will seem arcane and obscure. What about Roe v. Wade and partial birth abortion? What about the 10 Commandments? What about eminent domain abuse? Roberts, I'm confident, would concede each topic would pose a hard case.

It's reasonable to deduce from his past work that he would carefully consider Roe and the case law subsequent to it that has recognized that the people can choose -- if they want -- to give greater protection to life in ways that do not amount to an undue burden upon a woman's privacy and liberty.

It is likely, too, that in matters of religious display Roberts would abide by the original understanding of the religion clauses as not hostile to religion, but understanding as well that no government entity may coerce belief or practice.

Roberts and the Bulldozer

And the protection of private property? Well, perhaps it is enough to say that were the bulldozer of eminent domain about to raze my family home I would want Roberts behind the judicial desk hearing my constitutional objection, since he is far more likely to conclude that the words ``public use'' don't just mean any broad public purpose favoring a fancier or more taxable use.

Of course, I wouldn't expect Roberts to prejudge any of these matters. The Senate shouldn't either. And if they don't understand why, I am certain Roberts would patiently explain again, as he did in Lujan, why the Constitution requires a bona fide case or controversy before an answer informed by the written law can be given.

Last Updated: July 22, 2005 00:09 EDT