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The John Roberts Supreme Court Nomination: If Democrats Fight His Confirmation, They'll Be Very Unlikely to Win


Thursday, Jul. 21, 2005

On Tuesday, President Bush nominated the U.S. Court of Appeals for the District of Columbia Circuit's Judge John Roberts to replace retiring Justice Sandra Day O'Connor. With this nomination, I believe the prospect of a titanic confirmation battle has diminished, though not altogether disappeared.

It is not because Roberts is a moderate. Most people think he's very conservative in his jurisprudential views - conservative enough, in fact, probably to warrant a real fight on ideological grounds. But most likely, that battle won't be joined in a serious way. And the reason is simple: It's a fight the Democrats will have a terribly hard time winning.

Why Roberts Is A Very Difficult Target in a Confirmation Fight

Why is Roberts such a tough target?

First, he's whip-smart and has terrific credentials. He was at the top of his class at Harvard Law, and served as a law clerk for the legendary federal appellate judge Henry Friendly and then for Chief Justice William Rehnquist.

Afterward, Roberts built a terrifically successful private practice at a leading law firm, Hogan and Hartson, and was a highly regarded advocate before the Supreme Court -- both in private practice and during a stint as deputy Solicitor General in the Justice Department during the elder President Bush's administration.

Along the way, Roberts also worked in the Reagan White House and Justice Department. And in 2003, thanks to President Bush's nomination and the Senate's confirmation, he became an appellate judge on the D.C. Circuit - often thought of as the nation's second most prestigious court.

Second, Roberts is telegenic, articulate, and well-liked even by ideological adversaries. In this sense, Roberts' personal reputation is a little like Ken Starr's before the whole Clinton impeachment mess. At that time, everyone thought of Starr as a collegial conservative with whom liberals could have a meaningful dialogue - a welcome contrast to sharper-edged right wingers like Antonin Scalia. Similarly, Roberts is often contrasted with the sharper-edged, and more openly right-wing Judge Michael Luttig, of the U.S. Court of Appeals for the very conservative Fourth Circuit.

A number of liberals, perhaps including some from the court on which he now sits, will likely portray Roberts in the same terms they (or others like them) once used for Starr - and do so sincerely. Roberts received broad support when Bush nominated him to the appellate bench in 2003; any objections now may seem a bit manufactured - or hypocritical.

Roberts's command of the law is superb, and he's sharp enough to be able easily to separate what the law is, from what he'd like it to be - at least, for the purposes of confirmation hearings, if not on the bench. So Democratic senators -- none of whom have the command of the law Roberts has -- will have a very tough time making Roberts look bad if that's what they set out to do. Democrats effectively demonized the much less charming and much less telegenic Robert Bork; that won't happen to the handsome, affable John Roberts.

Republican backers of Roberts's nomination will be arguing loudly that his combination of brains, experience, and collegial temperament should be the end of the confirmation story. And to be sure, these qualities are very important in a nominee. But a confirmation process isn't just meant to give opponents a chance to stop the nomination in its tracks; it's also meant to allow the American People to see exactly what we are getting.

It's our last chance, through our representatives, to ask questions a future Supreme Court Justice must answer (or suffer the consequences) - rather than simply listening to the Justice's own, often legally-binding words.

Even With Confirmation Practically a Sure Thing, Democrats Should Still Examine Roberts's Views

For this reason, it would be a shame if Democrats, sensing the likely futility of opposing Roberts, forego a substantive examination of Roberts' views.

Admittedly, ideologically-charged confirmation hearings can be destructive. If a real battle heats up, interest groups on both sides will be pulverizing the public with truth-bending political spots for and against the nominee. It will be ugly and unseemly and runs the risk of deepening the already great fissures in our political culture.

Making this particular hearing an ugly one may also drain some of the public's resources, and sympathy, when they are more urgently needed later - for instance, if President Bush nominates an extremist to replace Chief Justice Rehnquist when he retires. Democrats may well want to save their fire for that contingency, rather than focusing it on Roberts, now.

But at the same time, it has to emphasized that a Supreme Court confirmation hearing, especially one as important as this one, creates one of the rare moments when public attention is riveted on the fundamentals of our government, and on basic questions of what we believe our constitutional rights to be, and on the role of judges in protecting them.

So whatever the tone of these hearings - and it ought to be respectful and measured - they should be substantive, and thorough: We should, and are entitled to, go into serious and substantive questions related to these topics with Judge Roberts, even given that - and, in a sense, especially because -- his confirmation seems to be a sure thing.

A New Confirmation Debate Regarding Competing Constitutional Visions Is Long Overdue

It has been more than a decade since the last Supreme Court confirmation hearing, of Justice Stephen Breyer. And it has been almost two decades since the last confirmation hearing -- Robert Bork's in 1987 -- that produced a genuine debate over competing conservative and progressive visions for the Constitution.

We are overdue for another round. Since that time, the Court has moved steadily to the right, and has established a long track record of conservative judicial activism, overturning parts of more than 30 federal laws. Since that time, the Supreme Court has decided a presidential election using transparently inadequate justifications - as I discussed in a previous column.

In short, there is a lot to talk about. How should judges interpret the Constitution? What are the limits on federal legislative power? What role should the Court play in protecting the channels of democratic governance, such as ensuring the principle of one-person/one-vote? Does the Constitution contain any unenumerated rights and, if so, does that include a right to abortion? Under what circumstances should the Supreme Court revisit past precedents? How does one balance the constitutional protections of personal privacy against the needs of national security?

The list goes on and on. But the point is succinct: The Roberts nomination presents an important moment for asking the questions and having the conversation - regardless of outcome.

And Roberts, precisely because he has thought through many of these issues during his exemplary career, is an ideal nominee around which to organize the dialogue.

Roberts' Track Record: Speaking Frequently, But Not Often In His Own Voice

Which brings me back to Roberts' record. He does not have much of a track record of speaking in his own voice about constitutional issues, or matters of public policy.

Roberts has only been on the D.C. Circuit for two years - not enough time to create the kind of paper trail that got Robert Bork in trouble. He has, however, written a potentially controversial dissent casting doubt on the constitutionality of the Endangered Species Act, and he certainly should be questioned about it.

As part of his government service, however, Roberts did create a substantial paper trail that may shed important light on his views. Of greatest note so far, are the briefs he signed or co-authored while serving as deputy Solicitor General in the elder Bush's Administration.

These briefs are advocacy briefs - speaking in the voice of the government, and not in Roberts's own voice. We do not know what role Robert's personal views played in shaping these briefs. We do know that Roberts was the "political" deputy in that office - which means that he was selected specifically for his ideological compatibility with the Administration, as opposed to simply being a civil servant in the Justice Department.

In this role, it is likely that Roberts helped make Administration legal policy, rather than just carrying it out. At a minimum, he also likely very likely agreed with the policies that he used his legal skills to advance. And, thus, while Roberts' supporters will surely try to dismiss the government briefs he signed as simply the work of a lawyer advancing the views of his client (the president), it may well be appropriate to hold Roberts accountable for what those briefs say.

For the moment, suffice it to say that Roberts played a significant role in drafting a number of briefs that raise significant questions (as well as being the basis for deep liberal concern).

Roberts on Roe - and On The Establishment of Religion: Some of His Controversial Positions

Women's groups in particular are likely to take to the barricades. This is because Roberts co-authored a brief in Rust v. Sullivan calling explicitly for Roe v. Wade to be overturned, even though the constitutionality of Roe was only indirectly at issue in that case.

The question Rust raised directly was whether the federal government could, consistent with the First Amendment, "gag" private counselors who received government funds - preventing them from even mention the option of abortion to those they counseled. Roberts argued the government could constitutionally do this, and the Court so held. In its holding, the Court did not see fit to re-examine Roe's constitutionality in depth, let alone to overturn it - suggesting that the argument that Roberts's brief had raised was more political grandstanding, than necessary legal analysis.

In addition, in Bray v. Alexandria Women's Health Clinic, Roberts co-authored an amicus brief supporting the position of various radical anti-choice groups arguing that blocking abortion clinic access was not an act of discrimination against women - even though it affected exclusively women, who were targeted based on a condition unique to women: pregnancy.

Other briefs in which Roberts was involved took other controversial conservative stands. He co-authored a brief urging the Court to find it constitutional for a public school to sponsor a prayer at graduation ceremonies. The Court declined that invitation in Lee v. Weisman.

Roberts also co-authored the government's brief in United States v. Eichman, defending the constitutionality of the federal law criminalizing flag burning, even though the Supreme Court one year earlier, in Texas v. Johnson, had ruled a similar state statute unconstitutional. The Supreme Court struck the law down.

Might Roberts's willingness to urge a virtually-instantaneous overruling of Texas v. Johnson, here, presage a similar receptiveness to an overruling of the much-longer-in-the-teeth Roe, or the more recent decision reaffirming Roe, in 1992, Planned Parenthood v. Casey?

In the end, assessing these aspects of Roberts' record must await much more information about Roberts' actual role in these cases. What we do know, though, is that leaving that question aside, these briefs and other aspects of Roberts' record provide - at a minimum -- a solid basis on which to engage the nominee in a serious debate over his substantive views.

Brains, credentials and personality are important in a Supreme Court nominee. But they are not as important as a nominee's substantive views. We may rationally prefer a nominee who is less brilliant, but more liberal, over a conservative star like Roberts. Intelligence is not a trump card - even on the Supreme Court.

Ultimately, the Senate's job is not to decide whether Roberts is a great lawyer and a good guy, but to test the soundness and integrity of his vision of the Constitution and the Supreme Court on which he hopes to sit.

And going through this process is not merely appropriate, it is a necessary part of national debate over our legal heritage that is long overdue.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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