Bush's pick meets measured reaction
Democratic statements on Roberts could signal a less-than-contentious confirmation.
WASHINGTON — If first public impressions are crucial after the announcement of a Supreme Court nomination, then President Bush may have done himself - and potentially even his foes in Congress - a favor.
Out of the block, no one argued that nominee John Roberts lacks the kind of résumé that would qualify him for the highest court in the land: a top student at Harvard University, clerk for Chief Justice William Rehnquist, deputy solicitor general under the first President Bush, successful private lawyer, and, for two years, a federal appeals court judge.
In contrast with the instantly contentious confirmation process of Robert Bork in 1987, in which he was ultimately rejected, the first reaction from key Democrats to Judge Roberts's nomination Tuesday night was measured. Those on the Senate Judiciary Committee, the first body Roberts will face, praised his career, temperament, and intellect - while promising tough questions that seek to draw out specific views on hot-button issues. But there was no effort to affix rhetorical horns on his head, as happened to Judge Bork.
Indeed, in this period of highly partisan polarization, a confirmation process for Roberts that falls short of World War III could help improve the image of political Washington in the eyes of the public, analysts say.
"The nomination of John Roberts will have a calming influence in Washington, and it is long overdue," says Ross Baker, a political scientist at Rutgers University in New Brunswick, N.J. "The simple fact that the president did not reach deep into the bag of most outspokenly conservative judges is a sign that he wants to moderate the discourse."
Still, no one expects the confirmation hearings to be easy, especially as both parties' activist wings whip up their ground troops and spend record sums on media and other outreach.
If nothing else, the coming battle should prove a fundraising bonanza for the interest groups. For years before July 1, when Justice Sandra Day O'Connor announced her retirement, interest groups have been spoiling for the next Supreme Court vacancy - the first since 1994.
The issues in play are central: abortion and other privacy rights, affirmative action, church-state separation, states' rights vs. federal power, the environment, property rights. When Roberts's name leaked out early Tuesday evening, activists from both sides pushed the button on e-mails aimed at framing the debate.
As they have done for weeks, conservative groups sought to preempt the expected liberal argument that Bush's nominee is an "extremist" who will threaten Americans' rights.
When Bush announced Roberts, liberal groups expressed alarm and disappointment over the pick. Though Roberts has a slim public record, feminist and civil liberties group instantly highlighted a 1990 brief that said, "We continue to believe that Roe was wrongly decided and should be overruled," a reference to the 1973 Roe v. Wade ruling that established a national right to abortion.
Legal analysts point out that Roberts was writing on behalf of the first Bush administration, and not necessarily laying out his own views. Efforts to get at Roberts's approach to abortion rights will figure prominently in confirmation hearings, but it is doubtful he will fully answer the question or satisfy critics.
Considering Roberts's slim personal record on issues such as abortion, it is in fact surprising that antiabortion forces have not raised public doubts about him. The replacement of O'Connor represents a rare opportunity to shift the court's pro-Roe vote from 6-3 to 5-4, and it is likely to be unclear how Roberts would vote until the time actually comes.
"Conservative groups ought to be unhappy, but they may not be able to say so," says David Garrow, a legal historian at Emory University in Atlanta.
The day after the Roberts announcement, most attention focused on the liberals - and the striking contrast between the outside groups and their Senate allies. While the ACLU dubbed the nomination a matter of "deep concern," Senate Democrats were more cautious.
Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee, cautioned that "no one is entitled to a free pass to a lifetime appointment on the Supreme Court." How a nominee views precedent, what a nominee regards as settled law, are all fair and necessary lines of questioning, he said.
In sharp contrast to his quick, blistering response in 1987 to the Bork nomination, Sen. Edward Kennedy (D) of Massachusetts held his fire on Roberts. "The nomination of John Roberts to the Supreme Court comes at a time of heated debate and great division in America.... I will not prejudge the president's nominee, and I will not decide whether to support or oppose him based on any single issue," he said.
Sen. Mary Landrieu of Louisiana, one of seven Democrats who signed a May 23 pledge to avoid a filibuster of the president's nominees unless in "extraordinary circumstances," urged the president in a letter last week to pick a nominee who could "unite the nation and muster the enthusiastic consensus support that Justice O'Connor and six other current Justices earned."
"As the Senate examines Judge Roberts's credentials and hears his testimony, we will begin to learn whether this support is attainable," she said, in a statement.
Congress watchers say that Roberts fits that profile. "He is extremely bright," says Norman Ornstein of the American Enterprise Institute. "I see nothing there that he is a rigid ideologue or revolutionary in legal terms. No doubt he is conservative, but he is not a pugnacious conservative. Because his credentials are impeccable, it's very likely he gets at a minimum 60 plus votes; it may well be 80 votes."
The Senate's balance of 55 Republicans, 44 Democrats, and one independent who usually sides with the Democrats means Roberts goes into hearings with the numbers favoring him.
For Roberts's skeptics, the biggest problem they face may not be his lack of paper trail - it could be his persona.
"This individual, a veteran of 39 oral arguments [before the United States Supreme Court], is going to wow people," says Professor Garrow. "He's going to be nimble enough, and he knows the constitutional corpus backwards and forwards so that any person on that committee is going to have a very difficult time keeping up with him."