Seems odd, but Rader Online editor Dave Perel helped shepherd the National Enquirer into the Pulitzer discussion--so, perhaps?

UPDATE: "RadarOnline.com has obtained new information that Justice Roberts will NOT resign. The justice will be staying on the bench."

Since Schumer introduced Mukasey, a fellow New Yorker, at the confirmation hearings, the nominee has stumbled in his responses about torture and the legal extent of presidential power. Presidential candidates Chris Dodd and Barack Obama have since said that they will vote against Mukasey in the Senate, potentially putting pressure on other candidates to follow suit.

But Schumer isn't budging yet.

"I'm going to give him the chance to put in detail what he means," said Schumer, referring to Mukasey's somewhat convoluted answer about torture.

The most important thing, Schumer said, is that Mukasey maintains his independence. "As long as he continues to project that I think he'll be confirmed," Schumer said.

I also asked him to assess the Roberts Supreme Court so far.

"I feel almost betrayed by Roberts," he said. "Because he said to us in all sincerity and earnestness that he believed in modesty he believed in stare decisis. This court has done more to overturn things and change things than any in recent memory. How could he have said what he said to us and the led the court to do this?"

Thirty-three years later, it seems, that cheeky line said more about Mr. Alito’s dearest ambitions than the yearbook editors could have known.

Speaking of her son watching and waiting as President George W. Bush mulled over candidates to fill two vacant positions on the Supreme Court bench, Judge Alito’s 90-year-old mother, Rose, confided to reporters in Trenton: “I think he was upset that he didn’t get there in the first shot, that [Harriet] Miers got it.”

Thirty-three years is a long time to wait for something you want that bad.

But to hear some tell it, 35-year-old Noah Feldman has wanted the same thing for just about that long.

“I think Noah got tenure when he was about 2 years old,” said Burt Neuborne, a professor of constitutional law at New York University, which has offered Mr. Feldman tenure. He has offers from Harvard and Yale as well; in addition to three books already published, he has also advised on the Iraqi interim constitution.

Mr. Feldman is a “Little Supreme,” one of a handful of earnest, platinum-résumé’d law geeks whose prospects for the Big Bench are the source of constant speculation among friends and colleagues.

“You fantasize about it, of course. That’s almost part of the fun of it, to fantasize about it,” Mr. Feldman said recently from his Greenwich Village office, when asked whether he’d ever dreamed of warming a seat one day. “That’s just part of the Walter Mitty inner life of someone who loves doing something …. If you’re someone who likes the law, then you’ve got to be someone who imagines that you got a chance to write a Supreme Court opinion.”

Mr. Feldman is hardly the only Little Supreme in town. There are at least a few other young lawyers—professors, assistant U.S. Attorneys, corporate litigators—who have that early Supreme Court buzz about them. Also at N.Y.U., visiting from the University of Michigan, is Richard Primus, 36, an intellectual purebred and constitutional scholar with a pensive, deliberate manner. There is David Schizer, also 36: He’s the youngest dean in the 147-year history of Columbia Law School, an amiable former professor who fell in love with tax law in his early 20’s. And Samuel Rascoff, a vivacious 32-year-old litigation associate at über-firm Wachtell, Lipton, Rosen and Katz, who clerked for Justice David Souter and worked as an assistant to L. Paul Bremer in Iraq. There’s Jennifer Newstead, 36, a thoughtful litigator at Davis, Polk and Wardwell who developed deep Republican ties during her four and a half years working for the administration, most recently as general counsel of the White House’s Office of Management and Budget.

It’s a long, slow, quiet trip to the top. They’re doing all the right things, whether they admit it to themselves or not. And if, like Judge Alito, they’re confiding their fondest dreams to their mothers, they do so to few others.

Rachel Barkow, 34, an associate professor at N.Y.U. Law School, clerked for Justice Antonin Scalia alongside several Little Supremes, serving as the “counter-clerk”—the nickname given to the Democrat he hires to sniff out political biases in his arguments.

“There is this unwritten rule that if they wanted it or thought about it, they wouldn’t say it,” Ms. Barkow said. “It’s that you get a strong impression that that might be a motivating factor—but not the motivating factor—based on some of the choices that people make.”

“The cliché about the Supreme Court is that lightning strikes,” said Mr. Schizer, the young dean. “I think there are some people who do their best to find a lightning rod.”

‘The Ultimate Job Ever’

Like Chief Justice John Roberts and Judge Alito, the Little Supremes tend to have big brains and conservative, future-oriented personalities. They’re under 40, a few years shy of being actual candidates for the lower-court bench, yet old enough to be on the cusp of making partner or getting tenure.

But they seemed older, even in their 20’s. Now in their 30’s, most of them are married, many with children. They wear blazers comfortably—not a lot of beards or nose rings here.

The Little Supremes speak in fully formed paragraphs, with lots of conditional clauses. Conversations with Little Supremes get Jesuitical; their word choice is precise, measured—in a word, judicious. Talking to them can spark feelings of intellectual inadequacy. The Little Supremes are “clarifiers,” able to dissect muddled questions and turn them into the ones they want to answer.

A story about Mr. Feldman’s first day at Yale Law School has him answering a professor’s question with “four points of analysis.”

“I honestly don’t remember it,” Mr. Feldman said of the tale. But he admits that he stood out.

“I definitely think people laughed at me in law school,” he told The Observer in an earlier interview.

The sec wit and Strunk and White sarcasm of newly minted Chief Justice Roberts is the comic coin of their realm.

But some of their behavior has obvious purpose. This is a group for whom the various confirmation scandals—Supreme Court nominee Douglas Ginsburg’s smoke-out and the respective Nannygates of Attorney General hopefuls Zoë Baird and Kimba Wood—were object lessons.

So they don’t do drugs, they don’t take liberties with their taxes, and they pay their household help—and they all seem to have household help—on the books.

Kermit Roosevelt, 34, a Little Supreme who teaches at the University of Pennsylvania Law School, recalled some nervous joking among the pot smokers in his class at Yale Law School. “You can’t do this, because it will come up at your confirmation hearing,” he recalled people commenting at a party. “Which is not to say that I did,” he added.

“I definitely made a decision that at some point I was aware that if you wanted the chance to do public service, it was probably a good idea to follow the law and never smoke pot—so I never did,” said Mr. Feldman.

Mr. Schizer doesn’t even speed. “It took on more of a moral significance to me as I grew up,” he confessed. “I think the only thing I do that’s illegal is I jaywalk, and I’m not even sure that is illegal in Manhattan.”

None of them will admit that they keep such tidy lives because they think they might someday face a confirmation hearing. It flies in the face of reason to plan to become a Supreme Court justice, they said, noting the role of serendipity alongside merit. All of the Little Supremes said that it would be absurd, preposterous, crazy to plan to be on the Supreme Court now, that it would take an unspeakable amount of hubris.

But sometimes this apparent modesty gives one more than a little occasion to reflect, like Hamlet's mother, on the practice of protesting too much. “I’m the guy who gets confirmed when the other guy blows up,” said one Little Supreme—who, like many, was too superstitious to be quoted on the record.

“I can only smile at the premise,” Mr. Primus said, with a smirk. “If you give me $10 right now, I would give you $10,000 if I’m on the Supreme Court. It’s not going to happen.”

“The kinds of people you talked about are the sort of people who woke up on the morning of the Roberts nomination and said, ‘This could be me,’” said one Little Supreme, who would also fit into this category. They “recognized themselves in the career trajectory of John Roberts.”

If anything, the commonalities in the Roberts and Alito nominations—alongside the mangled candidacy of Harriet Miers, whose career path placed her far outside the elite East Coast legal establishment—reinforces the status quo, the narrow corridor of educational background and career pursuits common to many Little Supremes. If it’s not possible to run for the job, it’s also not possible to get it without wanting it.

“It’s like when people say, ‘I’m going to be President.’ I’m not sure what to make of those claims,” said Catherine Sharkey, 35, a self-effacing Little Supreme who teaches tort law at Columbia.

“I think it would be hard to be in certain circles of the legal profession and not fantasize about it,” said another Little Supreme.

Mr. Feldman seconded that view.

“I think every single law student walks into law school, and you’re oriented toward these cases which you read, and a lot of them are written by the Supreme Court—and naturally, you think to yourself: ‘Boy, how neat would it be to do that?’ Similarly, if you’re lucky enough to get a chance to be a law clerk for any judge, you spend a lot of time with these Supreme Court opinions, and naturally you think some of them are wonderful and some of them are not so wonderful, and you’d love nothing better in life than to have the opportunity to do it. But that’s honestly it.”

One 34-year-old Little Supreme, who works for the government in D.C., became a little more forthcoming once The Observer agreed not to print his name.

“Many times people have asked me, ‘What would be your dream job?’ And I’ve always said, ‘Supreme Court justice,’” he admitted. “It’s the ultimate legal job, and it’s the ultimate job ever.”

David Kennedy, 34 (no relation to any of them—in the Senate or on the bench), is an assistant U.S. Attorney in the Southern District of New York.

“I have friends who sort of joke about it; I don’t think they’re predicting,” he said. “I don’t know—maybe they are.

“It’s sort of a weird thing to be told,” he continued, laughing. “Don’t you think?”

One-L

The Little Supremes viewed law school as the entrance into a secular priesthood.

Most came to the law as an extension of an academic venture that they had begun in college, where most studied topics like political theory, philosophy, American government. The law placed a premium on rigorous thought and argumentation, appealing to many Little Supremes with debating backgrounds, and it also seduced those interested in influencing society on the level of ideas.

“I became a lawyer, I suppose, because I unwittingly internalized at a young age Tocqueville’s observation that lawyers are the high priests of American society,” said one Little Supreme grandiloquently. “It was less about Clarence Darrow; it was less about the drama of the courtroom or the legal profession. It was an invitation to a seat at the table at the great American conversation.”

The Little Supremes are interested in public service, and that’s why many of them got into the law. But many have a rarefied view of what that means.

It doesn’t mean working for local candidates, participating in the rough-and-tumble of a campaign, or working as a public defender. They aspire to a significant role in public affairs, but on the level of ideas, or in the federal government, as statesmen, judges, big-picture advisors. In other words, something between the penury and isolation of a purely academic life and managing John Edwards’ campaign.

It starts with the right law school—Harvard, N.Y.U., but most especially Yale—and follows a few very specific paths from there.

According to classmates of theirs from law school, the difference between the Little Supremes and other extremely ambitious law students was the difference between someone who is interested in an appointed position and someone interested in an elected one. Unlike some of the aspiring Senators and governors canvassing law-school campuses—think Bill Clinton at Yale in the early 1970’s, or Cory Booker there in the mid-1990’s—the Little Supremes didn’t shake everyone’s hand or shy away from turning some people off.

Just about the worst thing that you can say about someone in law school is that they were a “gunner”—a catch-all term that can be used to describe someone who won’t share notes, say, or whose arm is locked in the upright position in class discussions, signaling a general readiness to offer “insight.”

The Little Supremes were not typically gunners. They weren’t suck-ups—in part because they tended to view professors as intellectual equals—but they did form close relationships with “famous” professors.

Most didn’t suffer from the need to let everyone know they were the smartest people in the room. Respect is earned quietly—and typically from others who have served with them in the more selective environment of law review—and certainly with a minimum of political fervor. (Wouldn’t want that on the record, would we?)

When exam time came around, it often wasn’t the Little Supremes holding forth on their reading of the establishment clause or grappling with other Big Ideas. They were more engaged by the wonky so-called “plumbing” courses, including those that focused on how the court and government work: federal courts and administrative law. One Little Supreme described the latter as “electrical engineering for lawyers.”

The Path to Power …

If the Little Supremes’ cars are festooned windshield to bumper with stickers from Harvard and Yale and N.Y.U., they’re also covered in names like Kent, Fay and Sears, the names of awards given to top law-school students; Rhodes, Marshall, Knox and Luce, references to the post-college fellowships many of them received; and SCOTUS, a reference to their time clerking on the highest court in the land, an honor like no other in the legal profession.

While only five former Supreme Court clerks in history have returned to the court as justices, three of them now sit on the court.

“The thing about Yale Law School,” said Michael Goldhaber, a member of the class of 1993 who is now the senior international correspondent for The American Lawyer, “is that everybody is competing to a be a Supreme Court clerk, and everybody who wants to be a Supreme Court clerk wants to be a Supreme Court justice. Those two fantasies go hand in hand.”

At N.Y.U., as at other top schools, somewhere between 15 and 40 students with the top grades get special counseling for prime clerkship placements, the goal being to send the top Supreme Court clerkship candidates to “feeder judges,” said Mr. Neuborne.

These are the old kingmakers of an old profession. In the first half of the century, it was Second Circuit Judge Learned Hand; in the 25 years after that, Second Circuit Judge Henry Friendly. At least six of his former clerks are on the federal bench—including Justice Roberts and Judges Pierre Leval, A. Raymond Randolph, Michael Boudin, William Curtis Bryson and Merrick Garland.

The feeder judges tend to be Supremes-in-waiting themselves. These days, some of those judges are political iconoclasts Richard Posner and Alex Kozinski, conservative sparring partners Michael Luttig and J. Harvie Wilkinson III, and Second Circuit Clinton appointees Pierre Leval and Guido Calabresi.

“I think Guido picks winners,” said Mr. Roosevelt, who didn’t get a clerkship offer from Judge Calabresi but did clerk on the D.C. circuit, considered a training ground for Supreme Court justices.

And it’s a betting man’s game. The wildly irreverent, anonymous legal Web log Underneath Their Robes keeps tabs on where feeder-judge clerks end up, and refers to Supreme Court clerks as “members of the Elect.”

Not surprisingly, most Little Supremes cluster in Washington, D.C. After clerking for the court, they are hotly sought after by the law firms with appeals-court practices. Young Federalist Society sympathizers often pick Kirkland and Ellis or Gibson, Dunn and Crutcher; liberals flock to Jenner and Block and Wilmer Cutler Pickering Hale and Dorr; those in between opt for O’Melveny and Myers; Sidley, Austin, Brown and Wood; or Mayer, Brown, Rowe and Maw.

The administration’s legal offices are the real stomping ground for Little Supremes. There are certain high-profile spots in government which ensure that someone will notice how you’re interpreting the Constitution: as one of the U.S. Solicitor General’s 17 attorney assistants, or in the Office of Legal Counsel at the Department of Justice, where Justice Roberts, Judge Alito, Justice Scalia and the late Chief Justice William Rehnquist all worked at some point.

The Little Supremes who work at New York firms have all put in time with the government. Charles Duggan, 37, a former Scalia clerk, just finished a year as associate counsel in the White House counsel’s office, the position that Justice Roberts held in the second Reagan term. Afterward, he went to the litigation department at the Manhattan white-shoe firm Davis, Polk and Wardwell, where he was joined by the aforementioned Ms. Newstead, fresh from her White House job.

… And Its Detours

But another route, the one taken by Mr. Alito, is to become an assistant U.S. Attorney. The Southern District of New York, headquartered in Manhattan, is a prestigious launching pad. Some of the Little Supremes working there are Jesse Furman (Yale Law School, class of 1998) and Michael Scudder (Northwestern University School of Law, class of 1998), both former Supreme Court clerks, and David Anders, 36, the jack-of-all-trades who sent Bernie Ebbers to the Big House.

These are the only Little Supremes likely ever to utter the words, “Ladies and gentlemen of the jury …. ” They’re the scrappiest of the Little Supremes—and, just maybe, have a little more scrapping to do.

“How do I put this?” said Mr. Primus of Mr. Furman, who is a friend of his from law school. “I think he’d probably also be a good building manager or chief financial officer—whatever you put in front of him.” (Mr. Furman declined to comment.)

Then there are the academics. It’s not an obvious place to start.

“To be a successful academic, you have to really have a viewpoint—or several viewpoints,” said Mr. Feldman. “And you have to be willing to wade into very controversial issues and take controversial stands on them in order to advance the debate; that’s why you hold the function in society that you hold.”

It’s telling that the major constitutional scholars on either side—Robert Bork on the right and Larry Tribe on the left—haven’t made it to the Big Bench.

The nomination and confirmation process has been kinder to those academics who have studied administrative law, where the issues tend not to be divided along party lines.

The Little Supremes know this.

“If you really want to be on the Supreme Court,” Mr. Roosevelt said, “you need to make political connections and not express controversial views, and I think I’m not doing very well on either of those.”

That’s why Traci Lovitt, 35, a fireplug appellate lawyer who once argued a case before the Supreme Court when she worked in the Solicitor General’s office, said to count her out.

“I think it is an unfortunate reality today that to be a judge, you cannot hold vehement opinions prior to the nomination and confirmation process,” she said. “You can’t be opinionated. You can’t hold views and be loud and outspoken about them. That is something I would never compromise about myself.”

But who knows? Twenty years from now, that could be a stump speech.

Or not.

“Roberts is very thoughtful, and he’s careful not to commit himself before he’s sure of what he thinks. That’s a quality I admire, and I seek to emulate that,” explained Mr. Schizer, preparing his way to become a stealth nominee. “I think you would find a lot of people who are not quite sure what I think about some issues.”

Mr. Primus let out a deep breath. “I believe that before I die, it’s likely that someone I know will be nominated to the Supreme Court,” he said.

You heard it here first.

With his reputation as one of the nation’s foremost younger hair-splitters, Justice Roberts mamboed through the confirmation ordeal, flicking off the cleverest jurisprudential traps set for him by the nitpickiest lawyers in the Senate. When it was all said and done, he was hailed as a jurisprude of great depth and a constitutional scholar almost without peer.

Compare him to Harriet Miers, she of the boxy suit jackets and the presidentially-attested-to evangelical convictions. Justice Roberts went to Harvard College and Law School, while Ms. Miers went to no-name-brand Southern Methodist University. Most of her adult life has been spent as a lawyer representing business interests and playing professional bar-association politics. This led to Ms. Miers becoming the first woman to be president of the Dallas Bar Association and the Texas Bar Association—which is nice, but not exactly a pair of knock-your-socks-off accomplishments. As the head of a big-bucks Dallas law firm, we can assume the lady is loaded.

The biggest trick she has pulled off to date was spotting George W. Bush and enlisting early in the women’s division of his crusade to mess up America. The two of them succeeded beyond their wildest hopes and our wildest fears: Her reward for good and faithful service to her master is a seat on the court, which is probably as good a reason as most others for a Presidential appointment.

The Miers nomination is opposed by some as “blatant cronyism,” as the phrase goes. One wonders if they might not be less het up against non-blatant or more or less concealed cronyism. “Crony,” of course, is but a nasty word for a friend and ally—but who, if not a friend/ally/crony, are you going to appoint? An enemy? A member of the opposition? What would politics here or anywhere look like if people in power did not reward their friends with the lush fruit of high public office? Doubtless it would be better, and double doubtless it will probably not happen in our lifetimes.

Some of the most odious figures in public life are demanding that the President take back the Miers nomination. Boiled down to its essentials, their argument is that, though the woman may be George Bush’s crony, she is not theirs. By what right do they get to put their crony in above the President’s crony? They say he owes them the pick on the basis of their turning out the votes in the last two elections. As politics is practiced, this is a powerful claim: You wouldn’t be in the job if it weren’t for us, so it’s payback time.

Hence, the dustup over Ms. Miers can be seen as a classic political-patronage squabble bearing the color and smell of many another in our sometimes-sordid history. In our era, patronage battles cannot be waged as such, or as they could and were a hundred years ago—back in the time of our ancestors, who were dumber and less enlightened than we. Today, you can go to jail for giving out public-payroll jobs on a patronage basis, and the U.S. Attorney in Chicago is hard at work putting a score of Democratic politicians in jail for that very thing.

A language has been invented for fighting over patronage jobs without seeming to. It involves the use of words like “professional” and “qualified.” When a politician wants his crony appointed, he says that she is a consummate professional and highly qualified for the post. Those with other cronies scream no, she is not.

When it comes to vetting candidates for the bench, the decision as to qualified or unqualified has been left to the American Bar Association, which has, with the rarest of exceptions, accepted any Presidential appointment as highly qualified. The term is so rubbery that anyone but an orangutan with a purple arse swinging from a date-nut tree can be deemed qualified if the politics are right—and if the politics be very right, even the ape gets confirmed.

Since Ms. Miers isn’t only the President’s gal but has been playing bar-association, local, state and national politics for decades, her opponents’ chance of knocking her off on qualification grounds are next to nonexistent. They’ve had to come up with super-qualifications to apply to her.

They’ve upped the standard: Now, to be confirmed, the appointee should be an outstanding constitutional scholar à la the bullroarer Antonin Scalia. Whether Justice Scalia is as deep as they say or just an opinionated man with a stentorian voice must be left for another time. But to assert that the Supreme Court, now or at any time in its past, has actually been a hiding place for constitutional scholarship is to cause tears of laughter to blur the eye.

Only those who can be conned into believing that constitutional scholarship is the same as long-winded slicing and dicing will buy that one. The court has had some outstanding figures on it, even three or four who might have earned the term “great,” but mostly it has been a place where Presidents put their cronies. Whatever deficiencies Ms. Miers may have in regard to her knowledge of the Constitution are easily remedied: She can read a book. There are plenty of them on the topic.

So if this President gets to put this crony on the court, what are the rest of us stuck with? Since Ms. Miers has labored silently in the bowels of politics, where no footprints are left, we don’t know anything about her. All we’ve got to go on are surmises, fears and hopes.

Any hope to be derived from Ms. Miers’ arrival on the court should spring from the very curriculum vitae she is being attacked for. This woman has been a practical, everyday lawyer for years and years. She has had to deal with people who come to lawyers with practical, everyday questions, the first of which is usually: “What is the law on this or that point? I need to know for my business.”

For the last 20 years, answers to that kind of question haven’t been forthcoming from the Supreme Court. During the Rehnquist era, the court’s decisions have been murky and often incomprehensible, regardless of the constitutional scholarship behind them. People have to know what the law is, and they haven’t been getting that from the court. Too often what they have been getting are inapplicable decisions of the sort that invite ever more litigation. We can hope that a Miers type is going to insist that future decisions be concise, precise and useful. We can hope.

Democrats and others fear that Ms. Miers will be the vote that finally reverses Roe v. Wade. If she does, it may not be such a bad thing—and I write this as one who has always believed in the right to choose.

While that right may still theoretically exist in law, in actuality it doesn’t in wide swatches of the United States. In many places, doctors dare not practice abortion for fear of being murdered or otherwise harmed. In many other places, so many restrictions have been imposed that abortions are not available to countless women. In other words, if Ms. Miers goes on the court tomorrow and the next day it overturns Roe, will it make any difference in the lives of millions of women? In states like New York, abortion will still be legal and available; in places like Mississippi, it will be no more illegal and unavailable than it is now.

So from the point of view of women having a right to choose, overturning Roe will make no difference—but to the Democratic Party, it will make a lot of difference. If overturning Roe doesn’t get it out of national politics, at least it will demote it from being a pivotal issue to one of lesser importance. National Democrats will be able to say that it is a state issue now, not a federal one. They will be able to shuck and jive, zig and zag and mushmouth on the question the way politicians must to pick up votes of people on both sides.

If that is a cowardly, even mildly immoral way of looking at things, the alternative is to go on losing elections, to let this never-ending, politically debilitating fight ensure continued Republican misrule. If Harriet Miers slips on a black robe in the near future, it may not be the worst thing.

Lester Henner, a Lawrence resident and former president of Congregation Beth Sholom, asked Clinton why she voted against the appointment of John Roberts to the Supreme Court of the U.S.

Clinton responded that while Roberts is a very intelligent man, she was nevertheless uncomfortable with the "privileged life" that he has led, citing the fact that he had been in private schools his entire life, going from private school to Harvard and then on to his professional life. She said that she thought that Roberts lacked a certain sensitivity because he "never had to live with hard knocks."

Jeff Ballabon, one of the bloggers on Judge and Jewry, also reports that the paper's source isn't the only one to have left the meeting with this version of events.

"Well, at least we know Hillary's going to be a Yes vote on Miers," he concludes.

More grumbling, and debate in the comments section, over at Orthomom.

Judge Roberts’ record, and his testimony before the Senate Judiciary Committee, reveal a man with superb legal credentials, sharp intelligence and an unflappable demeanor. No one who watched the hearings, Democrat or Republican, could now make the case that Judge Roberts isn’t fully qualified for the job. Indeed, he was even more impressive than Rehnquist was when he joined the court in 1972. Rehnquist, of course, profoundly influenced the court with his intellectual firepower; and one can easily see this nominee doing the same. Which naturally has made many people nervous.

During the hearings, the conservative Judge Roberts—a devout Roman Catholic—chose not to expound on his personal beliefs on issues such as abortion and the separation of church and state. Which was entirely appropriate; nomination to the Supreme Court should not be a popularity contest or have the flavor of an afternoon TV talk show. During his testimony, Judge Roberts made it clear that he has a far broader intellect, and deeper understanding of the human consequences of legal decisions, than some of the strict “originalists” on the court, who believe the Constitution does not evolve in meaning.

Judge Roberts grew up in Indiana, the son of a plant manager at Bethlehem Steel and a homemaker. He attended Harvard University, graduating summa cum laude after three years, and continued at Harvard Law School. In 1980 he clerked for Rehnquist, where he became known for his wit, clarity and no-nonsense approach. He became an associate in the White House counsel’s office during the Reagan administration, then built a thriving corporate practice at the law firm Hogan and Harston. Appointed principal deputy solicitor in the administration of President George H.W. Bush, he argued 39 cases before the U.S. Supreme Court and won 25 of them. For the past two years, he has been a judge on the U.S. Court of Appeals for the District of Columbia Circuit, the court second only to the U.S. Supreme Court in power and prestige.

What about his untested views on the so-called “hot button” issues? To demand answers to those questions now would be a pointless parlor game. Judge Roberts is only 50; like most people, he probably can’t say where he’ll be, intellectually and emotionally and psychologically, in five or 10 years. Moreover, he himself doesn’t know how he’d vote on a particular case, because the issues that come before the court range far and wide and can be staggering in their complexity—that’s why they’re being heard by the Supreme Court. And recent appointees to the court have not always voted the way the country thought they would.

Long after this nation gets out of Iraq and New Orleans is rebuilt, John Roberts will be Chief Justice. This will be good for both Democrats and Republicans, and for liberals and conservatives.

Weiner’s Graceful Exit

Graciousness is not a trait we associate with New York politics, an arena notable for its bare-knuckled approach to winning—and losing—public office. Some of the city’s most successful practitioners of the political craft have been tough infighters who knew how and when to plant an elbow in an opponent’s face—think of Fiorello LaGuardia, Ed Koch, Rudy Giuliani and Bella Abzug.

That’s why Congressman Anthony Weiner’s decision to stand down rather than contest a runoff for the Democratic Mayoral nomination is so refreshing.

Mr. Weiner was a distant second place in the Democratic primary, but the first-place finisher, Fernando Ferrer, fell just shy of winning the 40 percent needed to avert a runoff. Historically, runoffs produce bitterly contested elections that cost millions of dollars to hold and often lead to divisive splits in the Democratic Party. The runoff between Ed Koch and Mario Cuomo in 1977 was one such contest. Even worse was the 2001 runoff between Mr. Ferrer and then–Public Advocate Mark Green. That mini-campaign led to all kinds of ugly charges, leaving the party in disarray and helping to elect Republican Michael Bloomberg. Some Democrats say their party still hasn’t recovered from the 2001 runoff.

Runoffs first came about to ensure that a fringe candidate didn’t win a major-party nomination in a fluke. In 1969, Mario Procaccino, a very conservative Democrat, won the party’s Mayoral nomination over four liberal Democrats (including Norman Mailer). Many Democrats refused to support Procaccino, voting instead to re-elect John Lindsay on the Liberal line.

Fernando Ferrer is not a fringe character like Procaccino. Indeed, he is a candidate around whom New York’s Democrats can easily rally. Mr. Weiner recognized that he faced a difficult task in a runoff, and knew from history that a runoff could spell trouble for his party in November. He chose, then, not to run.

True, he certainly scored points with his decision, and surely he knows that Democrats will remember him fondly if he decides to run for city office again. Nevertheless, he made a gracious decision. The city doesn’t need another bitter, racially charged runoff. It’s time to compare Freddy Ferrer’s ideas and record with Michael Bloomberg’s.

The Giff of Gaffes

Why is Gifford Miller screwing up his own future? Each time he shows the promise of being the brightest rising star under 40 in New York politics, a story comes out that the City Council Speaker has done something a bit sneaky and unpalatable, showing, at best, a political tin ear and, at worst, a shabby disregard for ethics.

During the recent Democratic primary, this page endorsed Mr. Miller because he alone among the four candidates seemed to understand the importance of building on the success of the Giuliani-Bloomberg years. Mr. Miller lost that race, but more bad news came a few days later, when it was reported that he’d given merit raises to 20 members of his Council staff in the weeks leading up to the primary. While there’s nothing distinctly unethical about the raises, their timing—and the fact that several of those receiving them were helping with Mr. Miller’s campaign—stirred up enough questions to leave voters with a sour taste in their mouths. Taxpayers don’t like to read that a politician has handed out $100,000 in public money without good reason. Mr. Miller needs some quick lessons in sensitivity to the political game.

This wasn’t the first time he’s shown himself to be deaf to political nuance. Earlier this year, it was revealed that he’d spent $1.6 million of the Council budget sending out mailings consisting of campaign ads disguised as official Council business. When first confronted about the mailings, Mr. Miller’s staff insisted that the cost had been just $37,000.

Term limits will bring an end to Mr. Miller’s four years as Council Speaker come December. We still think he has a future in New York politics—as long as he stops following his instincts.

Today, with construction workers beside him, the Mayor called on the President to reinstate prevailing wage rules for federal contractors on the Gulf Coast. Last week, he took a shot at John Roberts.

What this seems to mean is that his alliance with the President-- a minor local political irritant at most times -- has suddenly turned into a major liability. Bush's numbers are as bad as they've ever been, and he's most toxic among the African-American voters Mike will have to count on in November. And after three years of loyalty to the President, it's hard to see how a handful of statements will convince people the Mayor and the President have nothing to do with each other.

(There's a Quinnipiac poll out tomorrow, and perhaps we'll learn what the Mayor's nervous about there.)

The Politicker and many others have been dismissing the notion that Bush could be a factor in this local race.

But Bloomberg pollster Doug Schoen has a bit more information than we do, so it's probably best to defer to what seems to be his judgement: that Mike has a big Bush problem.

More to come.

That seems to be the policy of the abortion-rights group, NARAL Pro-Choice America.

The organization landed itself in hot water early last month with a television ad condemning John Roberts, President Bush’s nominee to be Chief Justice of the Supreme Court.

The 30-second spot accused Mr. Roberts of filing court briefs “supporting violent fringe groups” and of holding ideas that led him “to excuse violence against other Americans.”

The claims, based on a very harsh interpretation of arguments made by Mr. Roberts in a Supreme Court case heard in the early 1990’s, were a bit shrill even for some liberal tastes. Frances Kissling, president of Catholics for a Free Choice, told The New York Times that the ad was “far too intemperate and far too personal.”

As the controversy intensified, NARAL decided to withdraw the offending advertisement. Within the past two weeks, however, the group has begun running a new anti-Roberts spot, albeit one that is couched in more moderate terms. This time, the voiceover suggests that Mr. Roberts doesn’t believe in the right to privacy and adds, “There is just too much at stake to let John Roberts become a decisive vote on the Supreme Court.” This ad ran before Mr. Bush announced that he wants Mr. Roberts to become Chief Justice.

The group must hope that assertions like these will help to ensure that Mr. Roberts gets a rough ride in his Senate confirmation hearings.

The NARAL saga is unusual in one way: It offers a rare example of an activist organization softening its approach in the face of criticism. But, in a broader sense, it’s typical: It exemplifies how interest groups of all ideological complexions—especially those whose troops man the trenches in the culture wars—coarsen and distort important debates.

Few voices dissent from the view that American politics has become increasingly polarized in recent years. But interest groups have gotten off lightly when it comes to apportioning blame for this state of affairs. In fact, they have played a massive role in driving public discourse toward the extremes and keeping it there.

Conservative organizations like James Dobson’s Focus on the Family have proven especially adept at building—and using—political muscle. Their tactics are clear: They devote enormous energy to sharpening a sense of outrage among potential supporters. In their world, American Christians are besieged by the forces of godlessness.

Last week, for instance, a Focus on the Family Web site carried an article lamenting how “Air Force Religious Regulations Could Silence Christians.” The Web site of another hard-line conservative group, Concerned Women for America, drew its readers’ attention to a forthcoming Girl Scouts national convention that, it was alleged, would “feature pro-abortion, pro-lesbian speakers.” When such “scandals” are highlighted, what self-respecting Christian fundamentalist wouldn’t rally to the flag?

Liberals are no shrinking violets when it comes to making extravagant claims that suit their own purposes. Shortly after the second anti-Roberts ad was released, for example, NARAL president Nancy Keenan told The Times that “freedom is at stake” in the battle over his confirmation. The claim seemed hopelessly melodramatic at best.

These groups are not dangerous merely because they use overblown rhetoric. It is self-evident that they have a vested interest in prolonging and intensifying enmity. Implacable confrontation is their lifeblood.

If their leaders were to acknowledge complexity, or to suggest that the other side may be composed of people who have valid reasons for holding different opinions, or to imply that compromise may be desirable, the effects would be profoundly detrimental to their organizational health.

“From the perspective of groups like these, one needs to establish a raison d’être, and therefore one constantly seeks problems,” said Professor Doug Muzzio of Baruch College’s Center for Innovation and Leadership in Government. “They also need to make those problems seem urgent and big and dramatic.”

Most of these groups are so enraptured by their own dogmatism that they do no more than pay lip service to the need to accommodate different viewpoints. They disdain the careful balancing of competing rights that lies at the heart of real political decision-making.

Thus, the New York branch of the ACLU mouths sentiments about the need for the police to “be aggressive in maintaining security” but launches a lawsuit aimed at stopping relatively innocuous bag searches on the subway system; James Dobson talks about the importance of civility but calls the Senate compromise arrived at by the so-called Gang of 14 “a complete bailout and betrayal.”

These groups, on both sides of the partisan divide, like to portray themselves as being composed of concerned “ordinary” Americans. Many observers regard them as a healthy and rambunctious element in the democratic process.

It’s time to question whether that’s really true. Sometimes it seems as if those who most loudly profess concern about American society are stretching its fabric to breaking point.

Chief Justice Charles Evans Hughes said that “90 percent of judicial decisions are based on bias, prejudices, and personal and political motivation, and the other 10 percent is based on the law.” We have a personal and paper trail that tells us with a great deal of certainty how he will arrive at 90 percent of his decisions.

His background as a successful private practitioner is given more emphasis in the press than the substantial years he spent in government service. After clerking for two years, one year for Chief Justice William Rehnquist, he became not just another lawyer working for the Reagan and Bush I administrations—he was the political deputy in the Solicitor General’s office. Selected primarily for his ideology, he argued in the Supreme Court to overrule Roe v. Wade, to permit prayer in schools and to punish dissidents. Of course the briefs express his personal views; he wouldn’t have been there if they didn’t. It insults him to claim otherwise.

During his two years as a judge, he consistently voted in support of authority—for governments, corporations, the military and the police. His brief in Rust v. Sullivan called for Roe v. Wade to be overturned, even though the constitutionality of Roe was not at issue in that case. The argument was unnecessary. One legal scholar called it “grandstanding.”

Amicus briefs are often more reflective of a lawyer’s view than briefs authored on behalf of a litigant. In Bray v. Alexandria Women’s Health Clinic, Judge Roberts co-authored an amicus brief on behalf of various radical anti-choice groups arguing that blocking abortion-clinic access was not an act of discrimination against women, even though it targeted women exclusively based on a condition unique to women: pregnancy.

Judge Roberts talks about his respect for precedent and stare decisis. But he co-authored a government brief urging the court to disregard long-established law and to find it constitutional for a public school to sponsor a prayer at graduation ceremonies. That issue will soon again be before the court. If he’s confirmed, Judge Roberts will disregard Lee v. Weismann, the 1973 precedent that found public prayer unconstitutional.

Judge Roberts co-authored the government’s brief in United States v. Eichman, defending the constitutionality of the federal law criminalizing flag burning, even though the Supreme Court one year earlier, in Texas v. Johnson, had ruled a similar state statute unconstitutional. The Supreme Court rejected his argument. Judge Roberts, who claims a commitment to stare decisis and precedent, was willing to urge a virtually instantaneous overruling of Texas v. Johnson.

We do know how Judge Roberts will likely vote on the important cases facing the court this fall. In the court’s first week in October, it will hear the Bush administration’s challenge to Oregon’s “right to die” law. An appeals court noted that Oregon voters have twice passed state laws permitting assisted suicide. Pro-life/anti-abortion groups, including groups supported by Judge Roberts’ wife, have filed briefs in support of the administration. Judge Roberts’ appreciation for states’ rights will not overrule his commitment to find the law unconstitutional.

Two abortion cases, including a partial-birth abortion case, very likely will go against abortion advocates. Sandra Day O’Connor rejected, and Judge Roberts accepts, requirements for parental notification, even if there is a medical emergency. That issue is to be decided in Ayotte v. Planned Parenthood, a New Hampshire case that will be argued on Nov. 29, 2005.

Judge Roberts’ Circuit Court decisions make clear that he is against federal regulation—whether it be in the environmental, administrative or economic areas. The Federalist Society, of which he is a prominent and active member, had a program entitled “Rolling Back the New Deal: A Review of Economic Regulation.” More economically sophisticated than either Justice Scalia or Justice Thomas, he can emerge as the conservatives’ point man on economic matters, leading the already-started rejection of the New Deal court’s “commerce clause” decisions.

Very troublesome is his view of a President with expanded powers—a position embraced by the Bush White House. In the Hamdan decision, issued the week before he received the Supreme Court nomination, Judge Roberts permitted Mr. Bush to use military rather than civil commissions to try those enemy combatants. The President’s view that the Geneva Convention doesn’t apply at these trials, Judge Roberts said, is to be given “great weight.” Judge Roberts thus agreed that the Geneva Convention doesn’t apply, asserting the power of the President in wartime more strongly than any recent court anywhere. If confirmed, Judge Roberts will have many other chances to make decisions that will anger civil libertarians.

The reach of federal anti-discrimination laws and the Americans with Disabilities Act will again be challenged—Justice O’Connor was recently the fifth vote to expand those rights. Judge Roberts will reject Congress’ decisions and go the other way.

There are three death-penalty cases already accepted for the next term. While Justice O’Connor didn’t reject capital punishment outright, she found enough individual circumstances that narrowed the application of the law. This term, in a capital-punishment case where the court is being asked to reject a DNA argument and affirm a doubtful old conviction, Judge Roberts will vote to affirm where most likely Justice O’Connor would have voted to reverse.

Justices Scalia, Thomas and Rehnquist—and Judge Roberts in his Circuit Court decisions—use words and terms like “textualists,” “judicial restraint” and “stare decisis” when it suits them; when it doesn’t they assert the Supreme Court’s and the President’s rights over the rights of Congress. The claim that he favors judicial caution is inaccurate. Judge Roberts favors judicial restraint when it comes to interfering with state-court criminal convictions. He doesn’t favor judicial restraint when Congress has passed laws he disagrees with—and he doesn’t favor judicial restraint when it comes to giving the President the broadest of powers.

Although Judge Roberts gave speeches to the Federalist Society and is listed as a member of the Federalist Steering Committee, put together by Robert Bork, he claims he doesn’t remember joining the Federalists.

We know how Judge Roberts will vote on the issues of today, and perhaps for the next three decades. Congress should explore his views so the American people will know the consequences of his nomination.