Professor Robert George offers an insider's take on the Supreme Court

On what constitutional basis can we say that abortion is protected by "due process" but that a right to assisted suicide — unanimously rejected by the court in 1997 — is not? Why does the right to privacy not extend to polygamy or the use of recreational drugs? While posing these questions in a New York Times oped Sunday, the University's McCormick Professor of Jurisprudence Robert George gave his opinion on the Supreme Court as a leading voice of American conservative jurisprudence.

Though originally a Democrat — he campaigned for George McGovern against Richard Nixon in 1972 — George has risen to considerable prominence in national conservative circles. He often contributes to conservative publications like the National Review; is the founder and director of the James Madison Program, a conservative constitutional law and political thought society; and counts several prospective nominees to the Supreme Court among his personal friends.

President Bush interviewed Edith Brown Clement, George's close friend and fellow member of the James Madison Program Advisory Council, for a post on the Supreme Court, he said. George has publicly advocated for Bush to appoint Clement, currently a judge on the 5th Circuit U.S. Court of Appeals.

"She's a highly competent justice who'd make a great pick," George said.

George also has been promoting Michael McConnell, Michael J. Luttig, Priscilla Owens, Emilio Garza and Larry Thompson, all widely reported to be under presidential consideration for the Supreme Court nomination. Out of this list, George is partial to McConnell — a former professor at the University of Chicago Law School who now teaches at the College of Law at the University of Utah. George added, however, that he understands the President's reluctance to choose McConnell.

The nomination of Robert Bork in 1987 changed the judicial landscape, explained George, by motivating presidents to select nominees whose views on constitutional law were not publicly known.

"The lesson from [Bork] for both parties was it's a good idea not to say too much," George said.

Bork was famously rejected by a vote of 9 to 5 by the Judiciary Committee and then by the full Senate 58 to 42, following one of the longest and most contentious judicial hearings in history.

"The process now favors [legal] practitioners over professors, because, well, professors have to write. Why didn't Michael McConnell get the nomination? The real difference is that he is a professor," George said.

Though he waits with bated breath for the President to announce his pick to replace Sandra Day O'Connor, George has focused his attention, for the time being, on the Senate Judiciary Committee's hearings of Chief Justice nominee John Roberts.

"It's hard to imagine a more effective witness," George said about Roberts.

Though he expects Roberts to be confirmed by the full Senate with approximately 60 to 70 yea votes, George predicts that the vote in the Judiciary Committee will be closer and largely along party lines.

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"The committee is dominated on the Democratic side with the most liberal wing of the party," he said.

George predicts that Roberts' judicial style will resemble that of the late Chief Justice Rehnquist more than that of Antonin Scalia or Clarence Thomas.

He also speculated that Roberts will likely be "concerned that federal power has expanded too far. My guess is that he will look for certain areas to roll back federal power."

While many Republican-appointed nominees have had similar judicial philosophies — for example, ones that incorporate 'original intent' and states' rights — George cautioned against thinking of that sort of philosophy as "conservative."

"I think the labels of 'conservative' and 'liberal' work poorly in the realm of judicial philosophy," George said. "There is no necessary connection between conservative political philosophy and judicial restraint, or liberalism and activism. In fact, there was a time when it was the reverse."

George described a time in the early 1900s — the Lochner era — when the court practiced "activism" for conservative ends.

"Conservatives were way out of line in 1905, just as liberals are wrong in 2005," George said.

Bush's nomination of Roberts and O'Connor's successor could pave the way for a conservative voting bloc on certain cases, George suggested. He predicted that the two new nominees could be expected to vote with Thomas, Scalia, Kennedy and, on occasion, Breyer, a Clinton nominee.

During the upcoming term, the high court is expected to hear cases dealing with the pledge of allegiance, the rights of government detainees and enemy combatants and the Solomon Amendment.

The justices are also expected to hear a case on partial-birth abortion, though George doubts that any Court decision on the matter will ever put the issue to rest.

"On contentious moral issues, people won't ever be satisfied by a resolution arrived at by judicial fiat," George said. "Roe v. Wade hasn't settled anything. It still dominates our political life in every way."