All About A Guy Named John
He's brilliant, likable, a lawyer's lawyer. Why Judge Roberts is in for the grilling of his life
The battle next time. Democratic senators facing re-election battles in "red" states are weighing the political risks of opposing a nominee who has the American Bar Association's highest rating and is by all accounts qualified legally and temperamentally. Republican strategists say that among the Democratic senators they see as most likely to support Roberts are Nebraska's Ben Nelson, Florida's Bill Nelson, and North Dakota's Kent Conrad--all up for re-election next year. Potential presidential hopefuls like Sens. Joseph Biden of Delaware, Hillary Rodham Clinton of New York, and Evan Bayh of Indiana are calculating whether they can afford to defy their liberal base of activists and support the nominee. (Not likely.)
The hearings will also foreshadow another fight: Rehnquist, 80 and suffering from thyroid cancer, is in frail condition, and strategists are gearing up for the day the chief justice leaves the bench. Think of the Roberts confirmation as a warm-up for the next vacancy, which is certain to spark the battle seemingly deferred this time.
Democrats plan to use the hearing to set down markers for those future fights. Sen. Edward Kennedy will question Roberts on civil and voting rights and affirmative action. Ranking minority member Sen. Patrick Leahy will press Roberts on individual rights, access to justice, and presidential power. Biden will concentrate on congressional authority and the judiciary, while Schumer will prod the nominee for his views on the shifting of federal power to the states. Sen. Dianne Feinstein, the panel's only woman, will question the nominee on women's rights, including his position on Roe v. Wade, which Roberts once wrote should be overturned.
Though Roberts is expected to refuse --politely, of course--to answer many of the panel's questions on issues he may have to consider on the court if confirmed, Democrats still see opportunity. "This will be a golden moment to differentiate positions of the Bush administration and positions of many, many Americans," says Ralph Neas, head of the liberal People for the American Way and prime architect of the 1987 Senate rejection of conservative Supreme Court nominee Judge Robert Bork.
The affable Roberts, however, is no Bork. "The possession arrow is always in the president's favor on nominations unless a candidate has obvious problems with his record or a penchant for controversy, as Bork did," said Bruce Reed of the centrist Democratic Leadership Council and former Clinton administration aide. "The preponderance of evidence suggests that Roberts is a safe choice for the Republicans."
Turning point. However the hearings play out, the high court is at a turning point. The absence of retiring Justice Sandra Day O'Connor's moderate swing vote on landmark issues, Democrats say, raises the specter of rollbacks of civil and individual rights and a shrinking of the federal government's authority in areas like affirmative action, worker rights, and the environment. Conservative Republicans, especially those on the religious right who have embraced Roberts, see a long-awaited opportunity to chart a new course on cultural issues like abortion, separation of church and state, and same-sex marriage.