By Peter Baker and Jim VandeHei
Washington Post Staff Writers
Wednesday, July 20, 2005
President Bush nominated U.S. Court of Appeals Judge John G. Roberts Jr. for the Supreme Court last night, passing over several female candidates to replace the retiring Justice Sandra Day O'Connor in favor of a well-regarded litigator with conservative credentials and friends in both parties.
Bush introduced his choice for the nation's 109th justice in a prime-time East Room ceremony broadcast live on national television after a dramatic day of shifting speculation that captivated Washington. The president hailed Roberts as a renowned legal figure who would interpret the Constitution and laws rather than legislate from the bench.
"John Roberts has devoted his entire professional life to the cause of justice and is widely admired for his intellect, his sound judgment and his personal decency," Bush said, with Roberts at his side. Bush added, "He is a man of extraordinary accomplishment and ability. He has a good heart. He has the qualities Americans expect in a judge: experience, wisdom, fairness and civility."
Liberal advocacy groups immediately assailed Roberts for his positions on abortion and other issues. Before the announcement, however, Senate Minority Leader Harry M. Reid (Nev.) ordered his fellow Democratic lawmakers to offer a more measured response to whomever Bush chose to avoid appearing knee-jerk negative, aides said.
"The president has chosen someone with suitable legal credentials, but that is not the end of our inquiry," Reid said in a statement. "The Senate must review Judge Roberts's record to determine if he has a demonstrated commitment to the core American values of freedom, equality and fairness."
Roberts, 50, a former clerk to then-Justice William H. Rehnquist and a Justice Department official under Ronald Reagan and George H.W. Bush, was appointed by the current president to the U.S. Court of Appeals for the D.C. Circuit two years ago and confirmed by the Senate on a unanimous voice vote. But he made his mark in Washington as one of the most successful advocates before the same high court he would now join.
As a successor to O'Connor, a centrist-conservative who cast the swing vote for years, legal analysts expect Roberts to move the court further to the right, but do not consider him among the most ideological of the candidates Bush considered. Often described as steady, even-tempered and fair-minded, Roberts has accumulated a slim record as a judge but has a longer paper trail as a lawyer for the government and in private practice that will surely become the fodder for debate in the coming weeks.
Liberal groups have already called attention to his writings on abortion. As deputy solicitor general in the first Bush administration, Roberts signed a brief on abortion financing that argued in a footnote that Roe v. Wade, should be overturned because it "finds no support in the text, structure or history of the Constitution."
Some allies and analysts caution against reading too much into that because Roberts was reflecting official Bush administration policy at the time. At his confirmation hearing for the appellate bench in 2003, he offered a careful answer to the abortion question that likewise is open to interpretation. " Roe v. Wade is the settled law of the land," he said at the time, adding, "There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
Bush picked Roberts after personally interviewing five finalists Thursday, Friday and Saturday alongside White House counsel Harriet Miers, according to aides. Roberts, who has been teaching international trade law in London, secretly flew back to Washington to meet with the president in the executive mansion residence for an hour on Friday. Bush spent much of the weekend consulting with his chief of staff, Andrew H. Card Jr., then "essentially" decided Monday night, aides said.
Bush telephoned Roberts at 12:35 p.m. yesterday to offer him the nomination, the aides said. "I just offered the job to a great, smart 50-year-old lawyer," the president told aides afterward. The judge and his family then joined Bush at the White House for dinner at 7 p.m. .
In picking Roberts, Bush passed up the opportunity to name his friend, Attorney General Alberto R. Gonzales, as the first Hispanic on the court after conservatives attacked him for being too moderate. And Bush chose not to take the suggestion of his wife, first lady Laura Bush, who publicly advocated that O'Connor be replaced with another woman.
White House officials said Bush considered several women and minorities, but the aides did not explain why he bypassed them for Roberts. Bush interviewed Judge Edith Brown Clement of the U.S. Court of Appeals for the 5th Circuit at the White House on Saturday, and GOP allies were told Monday night and yesterday morning that she probably would get the nod.
Within hours, though, the White House signaled that she was not the choice, leading some of the GOP strategists to wonder aloud if they had been used to spread disinformation or if Bush changed his mind at the last minute. White House officials said last night that Roberts was the only candidate Bush offered the job to and blamed reporters for trusting Republicans who were not fully informed.
The nomination comes at a delicate moment for Bush's presidency, which was struggling with sagging poll numbers, a relentless war in Iraq and a stalled domestic program even before this month's disclosures about the role of his top adviser, Karl Rove, in the CIA leak investigation. Some Republican strategists said the nomination could help the White House divert attention from the Rove scandal and reinvigorate his political prospects.
The prospect of filling the first Supreme Court vacancy in 11 years has already mobilized political forces on both sides to raise vast financial resources in preparation for a titanic struggle akin to a presidential campaign. Starting the day O'Connor announced her retirement on July 1, interest groups have been airing television and Internet advertising, blitzing supporters with e-mail and pressuring elected officials to stand strong.
Liberal organizations that have been collecting dossiers on Roberts, as well as other candidates, for months, quickly moved to portray him as more extreme than his reputation.
"While he may not have been on Jim Dobson's short list of pre-approved nominees, let's be clear: John Roberts is no mainstream judge," said Wade Henderson, executive director of the Leadership Conference on Civil Rights, referring to one of the nation's most prominent conservative leaders.
Reid wanted to avoid such a reaction from Senate Democrats, concerned about falling into what he considered a Republican trap of condemning a nominee before the hearings start, aides said. The emerging Democratic strategy is to force Roberts to talk in great detail about his views on issues such as religious liberties and abortion and wait to pounce on his record until the hearings.
"The burden is on the nominee to the Supreme Court to prove he is worthy," Sen. Charles E. Schumer (D-N.Y.) said at a news conference last night. Yet even Schumer praised Roberts's character and temperament.
"We know Judge Roberts is no Sandra Day O'Connor, and the White House has sent a clear signal," Sen. John F. Kerry (D-Mass.), who lost to Bush in November, said in a statement. "There are serious questions that must be answered involving Judge Roberts's judicial philosophy as demonstrated over his short time on the appellate court."
Conservatives who have pressured Bush to fulfill what they saw as a promise to appoint a justice in the mold of Antonin Scalia or Clarence Thomas pronounced themselves satisfied. "He's going to be a fabulous justice," said Todd F. Gaziano, a scholar at the Heritage Foundation. "He's a very thoughtful person, a very collegial person, a very deliberate person."
Republican senators quickly rallied behind Roberts. "I don't know what his views are [about Roe v. Wade ], but groups have raised a lot of money to oppose this nominee," Sen. Jeff Sessions (R-Ala.) said on CNN. "It is incumbent on these senators not to let these groups decide it, and listen to what he says. He has been exceptional in every way."
Roberts, who was born in Buffalo, raised in Long Beach, Ind., and attended private school before earning undergraduate and law degrees at Harvard University, clerked for then-Associate Justice Rehnquist and worked in the Justice Department and White House during the Reagan administration.
After a stint at Hogan & Hartson in Washington, he went to work for President George H.W. Bush as deputy to Solicitor General Kenneth W. Starr, arguing cases before the Supreme Court. Bush nominated him for a seat on the D.C. Circuit in 1992, but his bid disappeared along with the president's reelection hopes. Roberts spent the Clinton administration back at Hogan & Hartson before being installed on the D.C. Circuit by the Bush in 2003.
Suave, handsome and well traveled in Washington circles, Roberts is popular in both parties and widely considered among the most talented appellate lawyers of his generation. He argued 39 cases before the Supreme Court and spoke with awe about joining the justices he has appeared before so many times. "I always got a lump in my throat whenever I walked up those marble steps to argue a case before the court, and I don't think it was just from the nerves," he said last night in the East Room.
Roberts also participated in the Bush v. Gore case that ultimately ended the recount of the 2000 election and handed the presidency to George W. Bush.
Bush has been waiting since the day he took office for an opportunity to reshape a court that has bitterly disappointed conservatives over the years. Although seven of the nine current justices were appointed by Republican presidents, the court has preserved abortion rights, affirmative action and a ban on school prayer -- although sometimes in a more circumscribed form -- while banning the death penalty in some instances and overturning laws against sodomy.
Perhaps no voice on that court has been more pivotal than O'Connor's. With three staunch conservatives on the right and four liberals on the left, O'Connor and sometimes Justice Anthony M. Kennedy, have often cast the swing votes, and O'Connor's case-by-case pragmatism has generally forged the tone and direction the court has taken in key opinions. When she announced her retirement on July 1, it heightened the stakes all the more.