Prediction: George W. Bush's nominee, John G. Roberts, will be confirmed by the Senate. Second prediction: Justice Roberts will do much to redefine what is the mainstream in American constitutional law.
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As to the first prediction, of course the left-wing groups—People for the American Way, the Alliance for Justice, NARAL Pro-Choice America—are busy trying to gin up opposition to Roberts. They want to see his nomination filibustered and killed. But they aren't likely to get the votes to do that. Even Democrats inclined to oppose Roberts have had to admit that he has superb qualifications. Sen. Charles Schumer, busy raising money from left-wing big contributors and direct-mail lists in his capacity as chairman of the Senate Democrats' campaign committee, had to admit that Roberts is highly qualified. So did Judiciary Committee ranking Democrat Patrick Leahy and Minority Leader Harry Reid.
They had little choice. Roberts has been called the nation's best appellate lawyer not only by Justice Antonin Scalia on the right but also by Clinton administration Acting Solicitor General Walter Dellinger on the left. Roberts and Dellinger are members in high standing of the bar of the Supreme Court, lawyers who served in the solicitor general's office in administrations of both parties who have had private practices specializing in Supreme Court appeals.
Other members include former Solicitors General Seth Waxman, who served in the Clinton administration, and Theodore Olson, who served in the current Bush administration. These are highly skilled and scrupulous advocates who, despite differing views on some issues, have high respect and, from comments I have heard some of them make, personal liking for one another. The solicitor general's office has a tradition of institutional excellence that has been maintained during administrations of both parties, and no one seems to be more respected among the brotherhood of Supreme Court advocates than John Roberts.
On many past nominations, whenever the left-wing groups have snapped their fingers, Senate Democrats, especially those on the Judiciary Committee, have jumped. It is not clear whether they will do so this time—or, more important, how many Democrats will do so. In their initial responses to Roberts's nomination, Schumer and Sen. Edward Kennedy made clear how they will proceed. They will try to pepper Roberts with questions about his judicial philosophy and about how he would decide specific issues.
Roberts, who has a minimal paper trail of legal writings and has made few if any provocative statements, will undoubtedly respond as Judge Ruth Bader Ginsburg did before the Judiciary Committee in the hearings on her nomination to the Supreme Court. Ginsburg steadily and consistently refused to answer such questions and argued that it would be improper for her to do so. You might call this the James Madison High School response. James Madison in Brooklyn is the alma mater of Justice Ginsburg and Senator Schumer and of Minnesota Republican Sen. Norm Coleman as well. Why should the response of one James Madison graduate be unacceptable to another?
Democrats may also demand to see memos written by Roberts when he served as deputy solicitor general from 1989 to 1993. This was the ploy they used to delay the nomination to the D.C. Circuit Court of Appeals of Miguel Estrada, who served in a lower position in that office during the Bush I and Clinton administrations.
