Roberts’ confirmation looks likely

MSNBC:  Tim. What do you think?  Is Judge John Roberts a smart choice by President George W. Bush as a Supreme Court nominee?

Tim Russert:  A shrewd choice. He is a serious conservative – a sustentative conservative. Someone with a good temperament, someone with a good education.

MSNBC:  There’s always controversy.  What will Roberts likely struggle over?

Russert:  The most important issue to many people is abortion rights. John Roberts does have a paper trial on that issue. He’s written about it and advocated a position in his position as assistant solicitor general. He said in his first confirmation hearing for his current job that he viewed it as a settled law, as a circuit court judge.  Meaning he would interpret the cases before him based on the law as decided by the current supreme court. But, once you get on the Supreme Court, you can unsettle settled law.

Take Brown versus Board of Education, which said “separate but equal” schools.  That was precedent, that was settled law -- and the Supreme Court undid that.

Democratic Senators will try to get inside John Robert’s head and say, “Where do you want to take this court on the issue on Roe v. Wade?”

My sense is he will say, “I’m not going to prejudge any case that will come before me.” That's what Ruth Bader Ginsberg did very, very successfully in her confirmation hearing.

MSNBC:  Right now, with Sandra Day O’Connor, the Supreme Court is 6-3 in favor of abortion rights.  Roberts’ nomination might not be enough to really overturn Roe v. Wade, but abortion rights advocates are concerned about state laws being more restrictive when it comes to abortions in terms of things like parental notification.

Russert:   And so-called partial birth abortions and some of those other issues.  They’re concerned it would be "nibbling away" at the fundamental right to abortion.

There are other people on the court who believe there is no right to abortion in the constitution and the issue should be decided by the states.

This is going to be a very interesting discussion.

MSNBC:  Do you think by talking to nearly 70 senators the White House has successfully paved the way for the confirmation process?

Russert:  The White House did reach out to many Democrats.

I think the hearings are all important. But John Robert’s demeanor and his background - he was rated “well qualified” by the American Bar Association - bodes well for him.

MSNBC:  It’s starting to look like if Judge John Roberts doesn’t blow up himself, he’s going to get enough votes to be the next United States Supreme Court justice.

Russert:  I think that’s right.  You never know what’s going to happen in the hearings, but the initial take on this is so much different than the nominations of Clarence Thomas or Robert Bork.

Roberts will be questioned closely on philosophy and ideology and the commerce clause and Roe versus Wade and some of those issues.  I don’t think he’ll give very much, saying many of those cases may come before him, and he shouldn't comment.

And, if that’s the case, he should be easily confirmed.  There are 55 Republicans – more than enough for confirmation.  You only need five Democrats to prevent any filibuster and, based on my reporting over the last couple of days, if the vote were held today, he’d probably have close to 70 votes.

MSNBC:  So we should not mistake concerns express by those like Senators Edward Kennedy and Charles Schumer as the way the majority of Democrats are going to look at this?

Russert:  Yes.  The so-called “gang of 14” – the seven Republicans and seven Democrats who came together to avoid the nuclear option on filibusters said Thursday that Roberts doesn’t pose an extraordinary circumstance.  And, so, they would not go along with any filibuster.

Now, that’s not to say it’s over.  They’re looking at the memos he wrote when he was an assistant White House counsel during the Reagan administration and such.  Some smoking gun could always emerge.  But certainly, the initial rollout of his nomination has been extremely successful.

MSNBC: Does the lack of opposition surprise you?

Russert:  Not really, because if you look at John Roberts’ background, there’s a sense that, because of his academic background, his legal training and his experience, he is more than qualified to sit on the Supreme Court.

The issue then becomes is it appropriate to be testing philosophy and ideology.  And, I think, that’s where some Democratic senators have said, “Well, if President Clinton was allowed to put on Ruth Bader Ginsburg an Stephen Breyer – accomplished lawyers and people with extraordinary background, even thought they were liberal – should a conservative Republican president like George W. Bush be given the same courtesy for confirmations?”  And some are saying yes.

MSNBC:  Judge Roberts has been making the rounds on Capitol Hill since his nomination and he just doesn’t seem to be raising much controversy.  Is it already over?

Russert:  I still think the hearings are going to be quite interesting and some of the questioning will be very direct.  He has written things as the deputy solicitor general about Roe versus Wade – they’ll compare that to his testimony when he was seeking to become a judge on the circuit court of appeals.

I think he will be questioned quite closely by Senator Kennedy about the commerce clause and business-labor issues.

Anything can happen in a confirmation hearing, as we’ve found out.  So this is far from over.  But it is not going to be a situation like Robert Bork’s, where within hours of the nomination Senator Kennedy rushed to the Senate floor and decried “Robert Bork’s America.”

This nominee is extremely accomplished by everyone’s appraisal.  He will be questioned closely on those kinds of sensitive issues, but unless there’s a major disaster in the hearings, he should be easily confirmed.

MSNBC:  Will you be following the Robert’s nomination Sunday, on Meet the Press?

Russert:  We sure will. 

We’re going to have an exclusive interview with Fred Thompson, the former senator-now actor, who is the Bush White House point man on this whole thing.  Just what does he plan to do with Mr. Roberts and should questions be asked about some of the memos Mr. Roberts wrote when he was an assistant White House Counsel back in the Reagan White House.

Then, for the Democrats, the number two man in the Senate leadership, Dick Durbin, of Illinois, who voted against Roberts for the court of appeals several years ago.  We’ll hear about the Democrats strategy on the Roberts' nomination.

Then, in our political roundtable, we’ll pick up this along with the London terrorism and the future of Karl Rove… all, Sunday, on Meet the Press.