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Roll the dice

Senate Democrats should vote to confirm John Roberts, saving their firepower for the upcoming fight over a replacement for Sandra Day O'Connor.

It is as good as done that Judge John G. Roberts Jr. will be the 17th chief justice of the United States. The only question remaining from the Judiciary Committee's exhaustive confirmation hearings is whether Senate Democrats should register a futile protest vote. In our view, the answer is no.

As Roberts' reputation, legal skills and intelligence are exemplary, the Democrats' only plausible basis for objection would be their fears - which we share - of how he might vote on the environment, abortion, the end of life and certain other issues. His refusal to say left Sen. Joseph Biden of Delaware to complain that "we are rolling the dice with you, Judge."

Nothing could be worse for the country, however, than for the Senate to require prospective justices to commit themselves on matters they might have to hear. Biden himself honored that principle 15 years ago when he rolled the dice in favor of the enigmatic David Souter to replace the liberal Justice William J. Brennan. That came out all right.

Roberts did allay some of the most serious concerns. He acknowledged there is constitutional substance to what he once described as the "so-called" right of privacy. He paid his respects to the importance, though not necessarily the immutability, of precedents such as Roe vs. Wade. In saying that the framers intended the Constitution "to apply to changing conditions," he distanced himself from Antonin Scalia, Clarence Thomas and other so-called originalists who regard it as frozen in an ancient time.

But let there be no mistake: His credentials are unquestionably conservative and that is the direction in which he is likely to vote more often than not. That choice was settled, however, when George W. Bush won the last election. The Democrats could not reasonably have expected a nominee much more to their liking, and Bush easily could have given them worse.

In any case, this nomination is about replacing one conservative with another. It is the ensuing replacement for Justice Sandra Day O'Connor who could fatally tip the balance on the court. The Democrats would be prudent to conserve their firepower and their credibility for that fight.

A bipartisan vote for Roberts would underscore the Judiciary Committee's expressed concern over the polarization of the court itself. It is confusing to the country and unsettling to the rule of law when so many important cases end in votes of five to four or, worse, without even a majority opinion. If the Senate expects Roberts to do something about that, it would help to give him a good example.