A stealth nominee flies into enemy territory

Jul 20th 2005
From The Economist Global Agenda

George Bush has nominated John Roberts, a staunch conservative, to fill the Supreme Court vacancy left by the retirement of the moderate “swing voter”, Sandra Day O’Connor. Republicans want a quick confirmation but the Democrats are gearing up for a battle

SOMEONE pulled off a masterful public-relations coup. All day Tuesday, reporters and political activists buzzed with the rumour that George Bush was set to nominate Edith Clement, a pragmatic conservative who supported abortion rights, to the Supreme Court. But shortly before Mr Bush announced his choice at nine in the evening, the rumours abruptly changed—and soon the new rumours were fact: Mr Bush had chosen not Ms Clement but John Roberts, a much stauncher conservative who will give left-leaning voters reasons for hesitation.

Having spent a day digging into the past utterances and rulings of Ms Clement, reporters were quickly turned to a new question. Who is Judge John Roberts? He has been a judge for just two years, on the court of appeals for the District of Columbia. Clearly, given the concentration of institutions in the nation’s capital, this court is hugely important, ruling on all kinds of federal laws and regulations. But because he has a short career there, Mr Roberts is better known as a former lawyer for past Republican presidential administrations. It is perhaps this work, rather than his short life as a judge, that will define the battle over his nomination.

And it will be a battle. In introducing his nominee, Mr Bush stressed that he had consulted widely, including with many Democratic senators. He called for a “dignified confirmation process, conducted with fairness and civility”. His message was clear: he was not seeking a fight that would further polarise an already divided country. But Mr Bush’s short speech included several code phrases that hinted what those who know Mr Roberts already know: the nominee is a faithful conservative Republican who shares Mr Bush’s judicial philosophy, one not shared by the half of America who finds Mr Bush too conservative.

What are those values? Mr Bush said that Mr Roberts will “faithfully apply the constitution”. This sounds uncontroversial but for conservative jurists it has a quite specific meaning.
“Originalists”, like one of Mr Bush’s favorite Supreme Court judges, Antonin Scalia, argue that the constitution means just what its founders intended, nothing more. They abhor the idea, espoused by more liberal judges, that the constitution should be regarded as an organic document, shaped by the changing times, in which later judges may “find” new rights never envisioned by the framers.

And central among these contested rights are the electric social issues that most drive “blue America” (Democratic strongholds—mainly the left-leaning coastal areas) apart from “red America” (Republican areas—the more conservative mid-west, interior western states and the South). Chief among them, inevitably, is abortion. The number one goal of social conservatives is to overturn Roe v Wade, the 1973 Supreme Court decision that guaranteed women’s rights to abortion. Many scholars, both supporters and opponents of abortion rights, see it as an awkward piece of legal reasoning that finds the right to abortion in a purported constitutional right to privacy—itself never mentioned in the constitution. But social conservatives see it as an ungodly abomination that must go at once. They are delighted with the choice of Mr Roberts.

For he argued successfully on behalf of the first President Bush’s administration in Rust v Sullivan, in which the Supreme Court upheld the government’s right to withhold funding from doctors and clinics that counsel women to have abortions or who refer them to other practitioners who do so. A brief jointly written by Mr Roberts said: “We continue to believe that Roe was wrongly decided.” The women’s-rights advocates who are a bedrock of Democratic support are gearing up to present him as a threat to the availability of abortion in America. At the Senate confirmation hearing on his appointment to his current job, Mr Roberts said he would uphold Roe v Wade. But as a Supreme Court justice, he would have the power, with his colleagues, to overturn it.

However, given the current balance of the court, at least one more anti-abortion judge would be needed to overturn Roe. So, the mother of all battles can be expected if one of the pro-Roe justices, such as John Paul Stevens, who is 85, steps down during Mr Bush’s term of office.

What about Mr Roberts’s other opinions? He seems a straightforward conservative who will please Mr Bush’s base. As a deputy solicitor-general under the president’s father, he argued in the Supreme Court that religious language ought to be allowed in high-school graduation ceremonies. During his career he has also defended businesses and property owners from over-zealous interpretation of environmental rules. He has been no softy for criminal defendants.

Even so, much about the young nominee (he is just 50) remains unknown because of his short judicial tenure. Hence the efforts of both political camps to frame how his nomination process should proceed. Mr Bush wants a quick confirmation; the Democrats a long, probing examination of the nominee. Mr Bush’s call for “dignity” and “civility” in the confirmation process was carefully calibrated. He was referring to the near-nuclear fight over some of his earlier conservative nominees to lower courts, which Democrats blocked with a filibuster (the making of interminable speeches as a delaying tactic). A bipartisan deal averted a showdown in which the filibuster would have been eliminated for judicial nominees. Or perhaps it merely postponed the showdown: now, the two sides are ready to do battle. Ever since the announced retirement of Sandra Day O’Connor, the court’s moderate “swing voter” whom Mr Roberts would replace, the two sides have been raising money and taking out ads, angling for position.

Several Democrats have already spoken of Mr Roberts positively; Charles Schumer, a New York senator, said he had “outstanding legal credentials”. But Mr Schumer also noted that he had voted against Mr Roberts’s last nomination to the appeals court, unsatisfied with some of his answers to the judiciary committee. Patrick Leahy, the top Democrat on the committee, has said that when his Senate colleagues examine nominees for confirmation to the court, their job is to “examine them, not to rubber stamp them”.

Mr Roberts, the president noted, had received a letter of broad bipartisan support from legal experts when he was last nominated to a judgeship. But that is no guarantee of civility this time. The Supreme Court is a tremendous prize, and Washington is in a partisan mood. The affair of Karl Rove—whom Democrats accuse of blowing the cover of a CIA agent in revenge for her husband’s criticism of how Mr Bush made the case for the Iraq war—is still simmering.

Democrats, having seen Mr Bush’s reputation for straightforwardness drop with the Rove affair, are starting to find their feet in opposition. Mr Roberts may well be confirmed to the court. But his opponents are already promising that this will not come without a tough, and possibly painful, political fight.

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