WASHINGTON — Some say that President Bush’s nomination of appeal court judge John Roberts to the Supreme Court will trigger a brutal, blood-soaked confirmation battle that will tie up Washington for months.
Here’s why the odds are very much against that and here is why he is likely to be confirmed: Roberts is Mr. Establishment. When he was nominated for the appeals court for the District of Columbia Circuit in 2003, he was praised by Walter Dellinger and Seth Waxman — two former solicitors general in the Clinton administration. And, Roberts is respected by the Washington legal establishment as one of the very best Supreme Court advocates of the present day.
I specifically asked Sen. Joe Lieberman, D-Conn. about John Roberts and Judge Michael McConnell last Wednesday.
Were they, in Lieberman’s view, mainstream conservatives who could be confirmed?
Here is what Lieberman said: “They’d be in the ballpark…. Obviously if they were nominated for the Supreme Court you’d go into their records in a lot more detail, but those are two good examples.”
No Janice Rogers Brown
Unlike recently confirmed appeal court judge Janice Rogers Brown, Roberts has not delivered provocative and incendiary speeches and articles.
His record as an appeal court judge is quite slim, since he has only served on the bench since June of 2003.
But even though Roberts has not much of a paper trail to attack, his vetting as conservative is clear and certified.
One does not become law clerk to Associate Justice William Rehnquist; special assistant to Ronald Reagan’s attorney general William French Smith; associate White House counsel to Reagan and a top practitioner in the solicitor general’s office under the first President Bush without being a solid conservative.
Plenty of veterans of the Reagan and first Bush administrations can vouch for him.
Yet he is not like Justice Antonin Scalia in temperament.
Scalia often browbeats and mocks lawyers who argue a case before the high court.
I have seen Judge Roberts only once in a courtroom and that was in April when, as part of a three-judge panel, he heard oral arguments in the case of Salim Hamdan, Osama bin Laden’s one-time driver now being held at the military prison at Guantanamo Bay.
Roberts struck me as restrained, careful, and extremely alert. He rarely interrupted the lawyers’ arguments and when he asked questions they were brief.
If he is a man impressed with himself, it certainly does not show. Unlike Scalia he did not seem to enjoy hearing himself hold forth.
At the moment — unless there is some smoking gun hidden in his years of private law practice — the only avenue of attack for Democrats to block his confirmation would seem to be an attempt to get the memos he wrote while in the solicitor general’s office from 1989 to 1992.
Democrats on the Judiciary Committee can argue that they need to know more about how Roberts thinks and therefore they must see those memos from the late 1980s.
The Bush administration will refuse to turn over the memos, saying the confidentiality of solicitor general’s office in preparing arguments must be held sacrosanct.
This is the very same issue Democrats used to justify their filibuster of Bush appeals court nominee Miguel Estrada in 2003.
Views of the advocacy groups
The outside liberal advocacy groups were quick to issue statements expressing worry about Roberts: People for the American Way brought up the legal brief Roberts prepared while serving in the solicitor general's office arguing a case called Rust v. Sullivan.
The brief said that the president and other members of the Bush I administration “continue to believe that Roe was wrongly decided and should be overruled” and that the Court’s ruling that a woman has a right to get an abortion has “no support in the text, structure or history of the Constitution.”
There are some Republicans who’d be happy to fight out a battle on the Senate floor on that quote, but their defense of Roberts will be that he was simply representing his client, not voicing his own views.
The Leadership Conference on Civil Rights warned against accepting the appearance that Roberts presents.
The group conceded that Roberts “may not have been on the (Christian conservative) Rev. James Dobson’s short list of pre-approved nominees” and “at first blush, John Roberts may not appear to be an ultra right judicial activist.”
But in reality, the group said, he “may be a hard-nosed extremist with a soft conservative facade. In short, the president may have nominated a stealth candidate: a Justice Scalia or Thomas in O’Connor’s robes.”
And Democratic strategist Chris Kofinis set the nomination in the larger landscape: “The president made a choice that he knows will raise the ire of most Democrats, progressives, and moderates. He and the right-wing got exactly what they wanted: a right-wing judge and weeks of the American public and media focused on the nomination battle instead of a growing quagmire in Iraq, a Social Security debacle, and a Karl Rove scandal that had — until today — no end in sight.”
My judgment is that, in the end, Lieberman and other conservative and centrist Democrats will vote for Roberts and he’ll be on the high court come October.
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