They got away with it then, but they probably will not now. When Democrats made that demand, all living former solicitors general, most of whom served in Democratic administrations, signed a statement saying that it would be improper for the government to turn over such memos to the Senate. This ploy provides a very slender basis for a filibuster. And Republicans are confident that they have the votes to change the rules if Democrats do filibuster—which makes it less likely that they will do so.
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The third tactic the left-wing groups will try to use is to slime Roberts. Their research teams have apparently been busy. But Roberts appears to have led a blameless and boring private life. And attempts to slime the nominee are likely to be resented. When he announced Roberts's nomination, Bush called for a "dignified" confirmation process and praised Leahy and Reid for proceeding in a "dignified" manner.
Finally, at least some Democrats will use the material compiled long since by the left-wing groups to support the case that Roberts is "out of the mainstream." But when you read that material on the Web, you find it is pretty thin gruel. Ironically, the paper trail might have been much longer had Democrats not prevented Roberts from being confirmed as a judge on the D.C. Circuit when he was nominated in election year 1992. Yes, Roberts was a member of the Federalist Society, and, yes, he is generally described as a conservative. But polls show that conservatism is far from a disqualifier for most voters.
Roberts will be pressed, of course, on whether he would overturn Roe v. Wade, and presumably, like Ginsburg, he will refuse to answer. But there will be five votes on the court to maintain Roe even after he is confirmed. He could make a difference on partial-birth abortion bans, which Justice Sandra Day O'Connor has voted to overturn and which Justice Roberts might not. But partial-birth abortions are, understandably, almost universally unpopular. How many voters want to see a viable baby torn from its mother's womb, its skull punctured, and its brains sucked out?
A Justice Roberts will probably move the court some distance to the right on some issues—though probably not on all those that conservatives would like. But in the process, I think he has the potential to help redefine what is the mainstream of the law. The New Deal justices appointed by Franklin Roosevelt redefined the mainstream of the law very quickly on the major judicial issue of the day: how much economic regulation the Constitution allowed.
Conservatives have been frustrated that over the past 30 years—in which seven of the nine justices have been appointed by Republican presidents—that mainstream has changed little. The confirmation of John Roberts will move the court a significant distance in their direction.
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