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
It was late August 1976, just a week before classes were to begin at Harvard Law School, and first-year student Stuart Miller, intent on a last few days of R&R on Cape Cod, had unloaded his belongings in Shaw Hall dormitory when he noticed an open door down the hall. Curious, he poked his head in and saw a young man surrounded by law books. His new classmate appeared to be at least a quarter of the way through the thick first-year texts. Why, Miller asked with some incredulity, are you doing all this work? "I want to get a head start," replied John G. Roberts, who returned to his books while Miller, now a San Francisco lawyer, set off for the Massachusetts shore.
Nearly three decades later, President George W. Bush's first nominee to the U.S. Supreme Court will have his legendary preparation skills put to the test when the Senate Judiciary Committee opens confirmation hearings this week in the historic caucus room of the Russell Senate Office Building. The hearings, chaired by Republican Sen. Arlen Specter, are expected to continue through early next week (story, Page 44).
True blue? Barring a blockbuster disclosure, Roberts will win support from a majority of the committee's 18 members, 10 of them Republicans. And he's likely to be confirmed by a majority of the full Senate later this month in time to join the court by the October 3 start of its new term.
But the hearings may still have their share of drama. Will the nominee get any Democrats' votes? How will Democrats position themselves, especially those with an eye on congressional and presidential elections to come and another Supreme Court vacancy that could materialize at any time? And, perhaps most important, what about Roberts himself? Is he the true-blue conservative his champions suggest, or might he have a few surprises up his sleeve?
There's little argument that Bush made a savvy choice in the 50-year-old federal appeals court judge who served in the Reagan and George H. W. Bush administrations and clerked for Chief Justice William Rehnquist. His sterling legal credentials and, perhaps more important, his likability and made-for-TV attractiveness have made it difficult for those opposing him to get much traction. The down-and-dirty fight everyone expected over the first appointment to the high court in 11 years simply hasn't happened.
Activist groups on both sides seem to have accepted that reality: They've used press conferences and E-mails to broadcast their messages, stockpiling most of their advertising money for future battles. Even the White House has had to spend little political capital on Roberts, who argued 39 cases before the Supreme Court and earned a small fortune as the top appellate lawyer for the Washington firm Hogan & Hartson. Though every major liberal interest group has announced its opposition to Roberts, no Senate Democrat has yet come out against him. "Ninety percent of this," said Democratic committee member Sen. Charles Schumer, "is going to be decided at the hearing."
Democrats plan to aggressively question Roberts about his conservative legal views and judicial philosophy but acknowledge privately that a Senate floor fight would be fruitless and politically damaging. The math doesn't work, either. Democrats are outnumbered by Republicans 55 to 44 (Vermont Sen. James Jeffords is an Independent), and this spring they essentially dealt away their ability to filibuster the nomination by agreeing not to block judicial nominees absent "extraordinary circumstances." "The filibuster deal was an incredible success for us," said the conservative Federalist Society's Leonard Leo. "It took it off the table and defanged the other side."
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.
Liberal groups have mined Roberts's documents from his time as an assistant attorney general and associate counsel to the president during the Reagan administration and principal deputy solicitor during the elder Bush's administration. They contend that the documents reveal Roberts as a zealous young conservative, unsympathetic to women's issues: He once referred to justification of Roe as the "so-called" right to privacy and to gender disparities as "purported."
Roberts's writings are peppered with smart-alecky asides--he calls a Girl Scout seeking a cookie-selling photo with the president a "little huckster." And he occasionally gives pause to some conservatives. Roberts suggested that Bob Jones, a Reagan supporter, be told to "go soak his head" for pestering the administration for a favor. As a private lawyer, Roberts once provided pro bono advice to a group of gay activists.
If he wins confirmation by a comfortable margin, as expected, it would be the realization of a dream for Roberts, who told law school classmate Mark Rosen he wanted to be either a Harvard law professor or a Supreme Court justice. "He truly loved the law," says Rosen, now a Philadelphia lawyer. "He was not a fire breather then, not a right-wing ideologue. The real question now is, who is the real John Roberts?"
Maybe by the end of the week, we'll all have a better idea.
This story appears in the September 12, 2005 print edition of U.S. News & World Report.