Edward M. Kennedy, Wade Henderson

Downplaying abortion: Why Roberts critics are focusing on the Constitution's commerce clause.

Editor's note: This story was originally posted July 22, 2005.

At week's end, the White House clearly has the wind at its back in the effort to secure John Roberts a seat on the United States Supreme Court.

Judge Roberts, currently a member of the US Court of Appeals in the District of Columbia, is, "a very attractive package," admits Wade Henderson, executive director of the Leadership Conference on Civil Rights. The Conference is a key member of the liberal coalition that has been preparing for months to oppose a Bush nominee to the Supreme Court.

At a Monitor breakfast, Henderson noted that Judge Roberts "has stellar academic qualifications. He is a member of the legal establishment in Washington, D.C. He has friends on both sides of the aisle. As a general matter, he is moving not so much toward a confirmation but what appears to be a coronation."

One sign of the nomination's momentum came Thursday. The so called "Gang of 14" - the bipartisan group of senators who produced a truce in the battle over judicial nominations - met and emerged to say there was agreement that Roberts' record did not meet the group's threshold for a Democratic filibuster.

It is not unusual that the administration has gotten off to a fast start in selling Judge Roberts, notes Senator Edward M. Kennedy, the second-ranking Democrat on the Senate Judiciary Committee. At Friday's Monitor breakfast, Kennedy said, "historically there is always a honeymoon period for the nominee. That's the way it has worked in the past and is working at this time. He is obviously a very appealing individual and he has impressive credentials. Having said all that, he is pretty much ...a blank slate in terms of whose side he is going to be on."

Any hopes Democrats have of blocking the Roberts nomination are tied to how Roberts explains himself to the American people at confirmation hearings this fall.

"At the end of the day this is a nomination that will stand or fall on Judge Roberts' response to the difficult questions with respect to his core beliefs and judicial philosophy and, at the same time, whether the administration provides all relevant documents related to his public service," Henderson said. "Thorough hearings are not a strategic ploy, they are a constitutional imperative."

Still, Democrats face an uphill battle in getting answers that will change the political equation. Nominees adjust the depth of their responses to senatorial questions based on the strength of their support. "When the nominee is pretty sure they have the votes on the committee, [they are] less and less responsive," Kennedy notes.

For the moment, those not in support of Roberts are focusing not on the hot-button issue of abortion but on the more cerebral, less-catchy matter of how Roberts views the commerce clause of the Constitution. Congress has relied on the clause to legislate on civil rights, workers' rights, and environmental issues. "Are we going to risk going back? Because a narrow and cramped view of the commerce clause is gong to take this march for progress back," Kennedy said.

"This is not from our perspective about abortion. It is about the broad range of issues that relate to the unenumerated right to privacy," Henderson said.

Kennedy argued that Democrats should not make an issue of the fact that Judge Roberts' wife, Jane Sullivan Roberts, is active in Feminists for Life of America, a group devoted to overturning Roe v. Wade. "I think it ought to be out of bounds. I admire her for that," the senator said.

Liberal activists argue that in some ways, they are the victims of their own success. "The first phase of this debate was to try to encourage the selection of someone not on the fringes of judicial thinking but toward the center. I think to some degree, we may have already helped to encourage that process," Henderson said. "Because I do think that while John Roberts is certainly [a] core conservative, at least if one can access the known record, he doesn't have the sharp edges that seem to automatically inflame and generate opposition."

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