When President Bush announced the nomination of attorney John G. Roberts, Jr. to the U.S. Supreme Court, there was an immediate signal of approval from Republican senators who spoke in superlatives about Roberts' wisdom, lawyerly skills and familiarity with Supreme Court precedent dating from his days as a law clerk to Chief Justice William Rehnquist.

Roberts' outstanding legal pedigree, relative youth and conservative judicial philosophy make him an ideal choice to serve as Bush's first nominee to the court. Because Bush had publicly stated that he preferred a candidate such as conservative icon Justice Antonin Scalia, one can anticipate that Roberts' judicial weight will surely tilt the court to the right.

One of the announced reasons for Roberts' selection is that he has argued nearly 40 cases before the U.S. Supreme Court — a staggering number given that nearly any lawyer who argued but one case would undoubtedly consider the experience a career highlight. No doubt Roberts developed a successful practice as a Supreme Court specialist who could pick and choose his clients and their causes.

Among his many clients, Roberts represented the state of Hawai'i before the Supreme Court in the seminal Hawai'i case Rice v. Cayetano. Although the court ruled against Hawai'i on narrow grounds, Roberts' brief, particularly on issues left open by the Rice court, provides insight into many of the arguments that fuel today's debate over the enactment of the Akaka bill — a bill that would permit Native Hawaiians to organize a federally recognized government much like those found in American Indian country and Alaska's native communities. The bill will be on the Senate floor as one of the first orders of business when it convenes Tuesday.

Ironically, technical constitutional arguments against the bill raised by so-called conservative scholars and politicians are at odds with Roberts' legal analysis of the issues.

Because Roberts is almost surely going to be confirmed to the Supreme Court, and he has satisfied the president and congressional Republicans as to his legal and philosophical credentials, great deference should be given to his constitutional analysis. So how would Roberts answer those critics of the Akaka bill who charge that the legislation is "race-based" in violation of the 14th Amendment to the Constitution?

Roberts flatly rejects such arguments. He writes: "(t)he Constitution, in short, gives Congress room to deal with the particular problems posed by the indigenous people of Hawai'i and, at least when legislation is in furtherance of the obligation Congress has assumed to those people, that legislation is no more racial in nature than legislation attempting to honor the federal trust responsibility to any other indigenous people. It is, in sum, 'not racial at all.' "

What does Roberts' conservative philosophy instruct regarding the criticism that Hawaiians today are not the descendants of "Indians" who lived in "tribes," so Congress' broad authority over Indian affairs cannot benefit Hawaiians? Roberts, as any constitutionally conservative jurist would do, harkens back to the "original meaning" of those terms in Article I, Section 8 of the Constitution. Here is what he cogently discovered:

"Petitioner's principal argument is that this authority is limited by the words 'Indian tribes' in the Indian Commerce Clause (Article I, section 8, clause 3). As a textual — not to mention historical and common sense — matter — that argument should be rejected. In empowering Congress with the authority to single out and deal with indigenous societies they knew as 'Indians' or 'tribes,' the framers did not intend to restrict Congress' authority to deal with the extension of sovereignty over indigenous groups of which they may never have heard, but which would pose the same basic issues as Indians occupying the 1789 frontier. The words 'Indian' and 'tribes' do not place Congress in this bind. In colonial America, 'Indian' was still defined as '(a) native of India.' It is not surprising, then, that Captain Cook and his crew called the Islanders who greeted their ships in 1778 'Indians.'

"The word 'tribe' is of no avail to petitioner either. At the founding, 'tribe' meant '(a) distinct body of people as divided by family or fortune, or any other characteristic.' That is — perhaps not coincidentally — how Congress has described Hawaiians, and fittingly so. See, 42 U.S.C., section 11701(1) (Hawaiians are 'a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago'); 20 U.S.C., section 7902(1) (same). That 'tribe' may mean something else today — in either legal or lay terms — should not circumscribe the authority conferred upon Congress to deal with indigenous people by those who ratified the Constitution in 1789."

It is clear to Roberts that Congress may easily legislate for Hawaiians just as it has done for other native peoples. But what limits does he see to the constitutional power granted to Congress to deal with Hawaiians?

"Petitioner ... suggests that Congress lacks the authority to enter into ... a (special trust) relationship with Hawaiians, and to fulfill it in the same fashion Congress has done with respect to America's other indigenous people. Here, too, petitioner is at odds with existing law. Congress has expressly found that '(its) authority under the United States Constitution to legislate in matters affecting the aboriginal or indigenous people of the United States includes the authority to legislate in matters affecting the native peoples of Alaska and Hawai'i.' 42 U.S.C., section 11701(17). There is no reason for this court to part with Congress here; Congress' broad authority over Indian affairs reaches the shores of Hawai'i, too.

"Also, 'as such, Congress has established with Hawaiians the same type of "unique legal relationship" that exists with respect to the Indian tribes who enjoy the "same rights and privileges" accorded Hawaiians under these laws. 42 U.S.C., section 11701(19). That unique legal or political status — not recognition of "tribal" status, under the latest executive transmutation of what that means — is the touchstone for application of (federal case law) when, as here, Congress is constitutionally empowered to treat an indigenous group as such.' "

Roberts rejects the idea that Hawaiian federal legislation is "race-based." He further rejects the idea that Congress is powerless to legislate for Hawaiians under the authority of the Indian Commerce Clause. Following Roberts' conservative lead, the twisted arguments of the Akaka bill's mostly conservative critics must be rejected. Roberts backs his positions with a solid and convincing understanding of the Constitution and federal Indian law. He will bring these views to the bench, if he is confirmed to serve on the nation's highest court.

Some may cynically argue that Roberts' writings are just part of the lawyerly craft used to promote his client's position. The implication is that Roberts does not truly believe what he writes in legal briefs filed under his name in the Supreme Court. That jaded implication undermines Roberts' integrity and detracts from his Supreme Court candidacy. Surely we should expect more conviction from a Supreme Court nominee, especially one who could be client-selective within his legal specialty.

Roberts got it right: There is no constitutional bar to passage of the Akaka bill.