Man Of The Hour
John G. Roberts confounds liberals and reassures conservatives. Wanna fight?
It was the coming cataclysm--a political death match over President Bush's first nomination to the Supreme Court and the next chapter in the nation's overheated culture wars. On one side, conservatives massed to avenge an 18-year-old grudge over Robert Bork's failed nomination and rein in a court that, in their eyes, has usurped the role of Congress in making law. On the other side, liberals expecting a right-wing nominee threatened a political Armageddon with one of their last remaining powers: the Senate filibuster.
But then, poof, less than 24 hours after the president named Judge John G. Roberts, a respected Washington insider, the anticipated high-stakes brawl wilted like an Ohio tourist in Washington's searing summer heat.
The fight, it seemed, was over before it began.
Though abortion-rights groups came out swinging, the mood on Capitol Hill, where Roberts made courtesy visits in the days following his nomination, was downright agreeable. Even liberal lions like Ted Kennedy, whose devastating attack on Bork minutes after he was nominated set the course for his rejection, announced on the Senate floor that he would not "prejudge" Roberts, adding: "I will not decide whether to support or oppose him based on any single issue."
By week's end, Senate Democrats admitted they'd be hard pressed to filibuster Roberts's nomination. Conservative groups canceled teleconference strategy sessions, saying they were unnecessary. Even liberal activists reluctantly acknowledged the deftness of Bush's choice: a brilliant, low-key 50-year-old lawyer with solid conservative credentials, an independent streak, and, perhaps most important, a negligible paper trail from two short years on the U.S. Court of Appeals in Washington. "If there's nothing new out there," said a Democratic strategist, "he's going to get confirmed."
"Nuclear option" unlikely. Born in Buffalo and raised in Indiana, Roberts, the son of a steel plant manager, seems far less a lightning rod for the left than other judges on the president's short list. "We're seemingly off to a smooth start," says Sen. Mary Landrieu, a Louisiana Democrat. Though much could change prior to his expected confirmation hearings before the Senate Judiciary Committee in September, the Harvard-educated lawyer and married father of two adopted children is clearly on course to replace retiring Justice Sandra Day O'Connor. "He looks very good going into this process," says Nebraska Sen. Ben Nelson, a Democrat and one of the "Gang of 14" senators who brokered a deal in late May to avoid the "nuclear option" that would have ended the right to filibuster judicial nominees. Roberts, who has argued 39 cases before the Supreme Court, is already benefiting from that deal, which calmed emotions on Capitol Hill, since some of the Gang have decreed that his nomination does not constitute an "extraordinary circumstance" that would put a Democratic filibuster back on the table.
Though Roberts has given the opposition little to shoot at, his record shows him to be a solid conservative. He clerked for Chief Justice William Rehnquist and has served in two previous Republican administrations. There is little doubt that in replacing O'Connor, a centrist who was often the key swing vote in high-profile cases, he would push the court firmly to the right. So Democrats say that, nice a guy as he is, Roberts can look forward to some aggressive questioning during the hearings. "People are looking forward to getting into his record and having a robust nomination process," says Arkansas Sen. Mark Pryor. "Nonetheless, people are impressed by him so far."
And the American public, almost always game for some good political theater, can still expect quite a show during televised Senate hearings. Starting with Kennedy and ranking minority member Patrick Leahy of Vermont, Democrats on the Judiciary Committee will press Roberts to answer questions about his position on abortion and about the court briefs he wrote for the Reagan and first Bush administrations. New York's Charles Schumer, a reliable liberal flame-thrower, wants Roberts to produce documents from his stints as principal deputy solicitor general and associate White House counsel --a request the president is likely to resist vigorously. Cue the fireworks.
While Democrats insist they need more information, religious conservatives are satisfied with what they know. Despite Roberts's limited judicial record, they believe he is "strict constructionist," if not an "originalist" like Justices Antonin Scalia and Clarence Thomas. "I don't think there's any evidence that he's going to be another [Justice David] Souter," said James Dobson, the founder of Focus on the Family. A little-known state-court judge from New Hampshire, Souter came to Washington with a thin record and turned out to be a bitter disappointment to the right after his nomination by President Bush's father. "We know a lot about Judge Roberts from his life, from his record, and from the things that he stood for," says Dobson. "This is a man who we could get very excited about."
Roberts's record on abortion, however, appears somewhat ambiguous. In a 1991 brief for the first Bush administration, he wrote that Roe v. Wade was "wrongly decided and should be overruled." But in his 2003 appeals court confirmation hearing, Roberts said the brief was written in his role as "an advocate for a client," adding that he believed the legal right to abortion "is the settled law of the land . . . . There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
The ambiguity means that conservatives, to some extent, "are being asked to take a leap of faith," says Manuel Miranda, who heads a coalition of conservative activists, but that leap has been eased by the White House staff, which made phone calls to assure conservative religious groups before Bush introduced Roberts. Ted Haggard, the president of the National Association of Evangelicals, says he was told by a White House aide that Roberts "would have respect for precedent, but that precedent would not have the same weight as the Constitution itself," perhaps signaling the nominee's stance on Roe.
Support from religious activists stems largely from reports of Roberts's faithful Catholicism and his wife's activism with the antiabortion group Feminists for Life of America. On a conference call among prominent conservative activists after the president's announcement, the initial concerns were about Roberts's religious affiliation, according to one participant.
Because his record of judicial decision making is so brief, speculation has abounded about how Roberts might fit in when the court opens its new term on October 3. "Those who know him say he is extremely conservative," says American University law Prof. Herman Schwartz, author of Right Wing Justice: The Conservative Campaign to Take Over the Courts . "[But] he doesn't make speeches. He doesn't write articles."
In addition to the footnote calling for Roe to be overturned, Roberts, as principal deputy solicitor general, also argued that the antiabortion group Operation Rescue did not engage in a conspiracy to prevent women from receiving abortions by blockading clinics. As a Supreme Court justice, says Peter Irons, a University of California-San Diego political science professor, "it's pretty clear that he would be caught between his personal views, which I'm sure are pro-life, and his respect for precedent." Roberts's stance wouldn't swing a court that currently supports Roe by a 6-to-3 margin, but it could affect decisions on the procedure opponents call "partial-birth" abortion, parental consent laws, and assisted suicide.
Colleagues familiar with his legal philosophy say Roberts is guided by a firm belief in the limits of federal power. "I see the comparability [with O'Connor] being the strongest on federalism," says Douglas Kmiec, a Pepperdine University law professor. In what's now known as the "Arroyo Toad Case," Roberts pushed the D.C. Circuit Court to review a decision that protected a species of toad in California from commercial development, arguing that the amphibian was not protected by the Endangered Species Act because it, "for reasons of its own, lives its entire life in California." The matter, he wrote, was thus beyond the reach of the federal government. That same philosophy of limited federal power could affect future court rulings on school prayer and public displays of religious symbols. "I think he'd take a more accommodating position," says Kmiec, "toward religion and public life."
Business groups say they're reassured by Roberts's hands-off judicial philosophy and history of defending major corporate clients. Advocating on behalf of Toyota in 2002 while a partner at the Washington firm Hogan & Hartson, Roberts won a Supreme Court case by arguing that the Americans with Disabilities Act didn't protect a woman suffering from carpal tunnel syndrome. He also filed a brief supporting the West Virginia coal industry's practice of mountaintop removal in a lawsuit brought by citizens who claimed the practice damaged their homes. Tom Donohue, the president of the U.S. Chamber of Commerce, issued a statement hailing Roberts as "well respected."
Backed tribunals. Roberts's legal history on business matters, however, cannot be easily categorized. "Lawyers from firms like [Hogan & Hartson] . . . represent their clients' interests," says Irons, "regardless of what side they're on." A top lawyer at the prestigious white-shoe firm for more than a dozen years, Roberts also argued successfully on behalf of a preservation group fighting to curb development in the Lake Tahoe area.
Roberts's unswerving support for Bush administration policy may provide one of his toughest challenges on Capitol Hill. In July, he joined in the unanimous decision to allow military tribunals for terrorism suspects held at the U.S. Naval Base at Guantanamo Bay, Cuba. Roberts also wrote a dissent arguing that Vice President Dick Cheney's energy task force records should be kept secret, an opinion upheld by the Supreme Court. Still, he is far from predictable. According to a review posted on the website of Goldstein & Howe, a Supreme Court litigation firm, Roberts agreed with liberal members of the court nearly as often as he sided with conservatives. So just exactly what type of justice Roberts would be is an open question. "The crystal ball," says Irons, "is a little cloudy." Which should keep things interesting--throughout the summer and into the fall.
This story appears in the August 1, 2005 print edition of U.S. News & World Report.