A Move To the Right, An Eye to Confirmation
Wednesday, July 20, 2005
President Bush moved boldly to shift the Supreme Court to the right last night by selecting federal appellate judge John G. Roberts Jr. to succeed Justice Sandra Day O'Connor. But in choosing a jurist with establishment credentials and bipartisan allies, Bush also picked a nominee he believes can win confirmation with some Democratic votes.
Bush appeared to have the court's future and the confirmation process in mind as he made his decision this week. All day, the name of appellate judge Edith Brown Clement floated through Washington as the president's apparent choice, but many on the right consider her conservative credentials far more suspect than Roberts's. By picking Roberts, Bush displayed his determination to put a more conservative stamp on the court.
At the same time, the president passed over a number of highly conservative judges whose nominations would have been seen as far more ideological and polarizing than that of Roberts. Given that this was the first but probably not the last Supreme Court vacancy he will be asked to fill, Bush signaled a less confrontational approach toward the Senate than he has adopted with his lower-court nominations -- and challenged the Senate to avoid a divisive debate over his choice.
Roberts faces a potentially contentious confirmation battle in any case, given the significance of O'Connor as the swing vote in many of the court's most important cases. There was no more important seat on the court than O'Connor's, and outside groups on the left and right began drawing lines last night even before Bush appeared in the East Room of the White House with Roberts and the judge's family. They have been ready for months for a noisy and lengthy argument over the future of the court.
But Senate Democrats reacted much more cautiously, saying only that there are many questions they want Roberts to answer during his confirmation hearings. Privately, they were being urged to keep their powder dry until a fuller vetting of Roberts's record as a judge and a lawyer is completed this summer. But there was nothing approaching the denunciation that greeted the nomination of Robert H. Bork in 1987, when within minutes of the announcement he was attacked on the Senate floor by Sen. Edward M. Kennedy (D-Mass.) as someone who would turn back the clock on women and minorities.
The caution may have been as much tactical as substantive, given that Senate Democratic leaders had urged their colleagues not to overreact initially no matter whom Bush nominated. Later they plan to press for access to records relating to Roberts's service in the Reagan and George H.W. Bush administrations and, if denied, will turn up the heat on him and the administration.
Kennedy's statement in response to Roberts's nomination laid out a series of questions that he and other Democrats want answered. "No nominee, especially a nominee who is well known to have argued ideological positions on issues important to the American people, should be confirmed without full and candid disclosure and discussion of those positions and their importance to him," he said.
Whether Democratic leaders carry through with threats to filibuster a Supreme Court nominee whom they regard as too conservative is the more important matter. Given Roberts's background and demeanor, that is now a much more difficult choice for them. On that question, the bipartisan Gang of 14, which brokered a deal earlier to avert a Senate meltdown over Bush's appellate court nominees, will hold a considerable amount of power in determining how far Democrats may be able to go in opposition.
The Gang of 14 deal included a provision that said a judicial filibuster could come only because of "extraordinary circumstances" but left it to each of the signatories to decide what met that threshold. Several senators are likely to be critical indicators. Among Republicans, Sen. John McCain (Ariz.) will play an outsized role, given his independent standing and following around the country. Last night, he endorsed Roberts's nomination and said he looks forward to a "swift up-or-down vote" on the Senate floor.
Among Democrats, Sen. Joseph I. Lieberman (Conn.) may well be the most crucial voice in the Gang of 14. Republicans were pointing last night to a statement he made last week that Roberts was one of several judges "in the ballpark" who might be able to avoid a filibuster. An aide said last night that Lieberman was misinterpreted on the question of Roberts. Lieberman issued a noncommittal statement last night, saying he looks forward to "a searching review" of Roberts's record before making a decision.
Roberts's record of service in the Reagan and first Bush administrations and his membership in the Federalist Society, an influential conservative legal group, have presumably established his credentials for the right. But his rhetoric is cool, earning him many friends and few outspoken enemies. His legal abilities are widely acknowledged to be excellent. And he has produced a paper record that presents no undeniable proof of personal views that could be attacked as extreme.
There is much about Roberts that is not known, particularly on some of the hot-button social issues that have made the Supreme Court the center of the culture wars between left and right. NARAL Pro-Choice America denounced his nomination and cited a brief he argued before the high court as deputy solicitor in the first Bush administration that said Roe v. Wade , which established a woman's right to an abortion, was wrongly decided. Whether that represents his personal view or the statement of a lawyer representing his client is a question Democrats will press Roberts to answer.
For the White House, the 50-year-old appears to be the ultimate confirmable conservative. As a replacement for O'Connor, a centrist who voted to uphold abortion rights and affirmative action, he would probably move the court's overall balance to the right. But he would do so without some of the verbal pyrotechnics that have characterized the opinions of conservative Justice Antonin Scalia.
One of Roberts's key advantages is his strong reputation among fellow members of the Washington bar, including many Democrats. Those relationships figure to earn him the support -- or at least the neutrality -- of a constituency that may otherwise be well placed to make the confirmation process difficult for the administration.
"John Roberts is one of the most measured, thoughtful judges out there," said John A. Rogovin, a Washington lawyer who served in the Justice Department during the Clinton administration and as general counsel of the independent Federal Communications Commission.
Bush had a range of possible choices with his first Supreme Court vacancy, with pressure from first lady Laura Bush to nominate a woman to fill the O'Connor seat, and Latinos and some Republican operatives hoping he would name the nation's first Hispanic to the high court.
Given the health of Chief Justice William H. Rehnquist, who has thyroid cancer, it is possible that Bush will have another vacancy to fill in the future, and at that time he may make a choice more clearly aimed at one demographic group or another in the electorate.
With his first choice, he moved to fulfill the broader pledge he has made since he first became a national candidate. He has promised judges who will not legislate from the bench and who strictly interpret the Constitution, and his allies said last night that Roberts more than meets those criteria. But by avoiding an overtly ideological choice, he offered Democrats a much narrower target to aim at.