Roberts Hearing - Day One

A Radical Roberts Court

By Mary Lynn F. Jones
Monday, September 12, 2005

President Bush has nominated a true ideological conservative to
the most powerful judicial position in the country. So why are
Democrats shying away from a big fight?

With a shortened timetable and a higher position at stake, members of the Senate Judiciary Committee will today begin considering the nomination of Judge John G. Roberts Jr. to serve as the 17th chief justice of the United States.

Already, Roberts - who was first tapped to succeed retiring Associate Justice Sandra Day O'Connor, then nominated to the court's top job after the death earlier this month of Chief Justice William Rehnquist - had the opportunity at age 50 to shape the court for decades to come. If confirmed, he would be the youngest chief justice since the legendary John Marshall in 1801.

Although the chief justice's vote counts the same as those of his eight colleagues, he has more than 60 statutory duties, which include running the justices' conferences; deciding who among the justices should draft decisions; setting the initial agenda as to which cases the court should consider; and leading the Judicial Conference, which, among other things, issues ethics guidelines for federal judges.

The chief justice also presides over impeachment trials; chooses members of the Foreign Intelligence Surveillance Court, which allows the government to conduct secret national security surveillance; and serves as the head of the judicial branch of government.

Given the responsibilities of the job - and President Bush's chance to nominate a second candidate to succeed O'Connor - choosing about a quarter of the court's members will likely be one of Bush's most important acts as president.

Roberts' confirmation hearings, originally slated to begin last week, were delayed due to Rehnquist's death and congressional response to the aftermath of Hurricane Katrina. Senate Republicans hope the Judiciary Committee hearings - which will include opening statements today, as well as testimony from Roberts and more than two dozen other witnesses - will wrap up later this week. That would allow the entire Senate to vote on Roberts' nomination the week of Sept. 26, so he can be seated before the court's new term begins on Oct. 3.

Bush nominated Roberts to succeed Rehnquist just two days after the late justice's death, eager to avoid a long and contentious confirmation fight as his administration battles criticism of its response to the devastating hurricane. In announcing Roberts' nomination, Bush remarked, "The Senate is well along in the process of considering Judge Roberts' qualifications. They know his record and his fidelity to the law. I'm confident that the Senate can complete hearings and confirm him as chief justice within a month."

Democrats, however, have not agreed to a timetable, with Senate Minority Leader Harry Reid, D-Nev., saying in a statement that Roberts' new nomination makes Senate consideration of him "even more important. ... The Senate must be vigilant in considering this nomination." Senate Judiciary Committee Ranking Member Patrick Leahy, D-Vt., promised that Democrats will ask "substantial questions" about Roberts.

Last week, Judiciary Committee Democrats repeated their request to Attorney General Alberto Gonzales to be able to look at 16 of the Supreme Court cases Roberts handled when he worked for then-Solicitor General Ken Starr in the first Bush administration. The senators noted that similar documents were made available to the committee during Rehnquist's confirmation hearings for the chief justice job in 1986. An earlier request to Gonzales resulted in a letter from an assistant attorney general who refused to discuss the senators' request.

Roberts - who once clerked for Rehnquist and carried his flag-draped coffin up the Supreme Court steps as one of his pallbearers last week - was originally Bush's choice for the court's top position before O'Connor stunned Washington in July by announcing her retirement and Rehnquist pledged to continue serving as chief justice despite battling thyroid cancer. So Bush named Roberts to the associate justice position.

Since his initial nomination in July, Roberts was considered likely to win confirmation for the O'Connor seat and is still expected to be confirmed as chief justice. "Democrats are in open disarray in the Senate," said Jonathan Turley, a law professor at George Washington University. "This is not the type of fight you win by coming late to it."

Last week, Senate Minority Whip Richard Durbin, D-Ill., told Roll Call that Bush did not consult at all with Democrats in nominating Roberts in July, while Sens. Kent Conrad, D-N.D., and Ben Nelson, D-Neb., said they thought the consultation process worked well.

Part of the reason is that Roberts' confirmation failed to trip the "extraordinary circumstances" clause of the agreement by the so-called Gang of 14 bipartisan senators. Several Democrats in states Bush carried in 2004, and who are up for reelection next year, have indicated that they plan to support Roberts.

Given Roberts' short tenure as an appellate judge and the administration's refusal to turn over some of Roberts' documents, the main job for Democrats in this week's hearings will be to sniff out Roberts' positions on issues such as abortion rights and affirmative action.

When he was nominated to the U.S. Court of Appeals for the District of Columbia Circuit two years ago, Roberts said that Roe v. Wade was "the settled law of the land." But in 1990, representing the first Bush administration, he said the 1973 decision should be overturned. As the high court's chief officer rather than a lower-court judge, Roberts may feel freer to exercise his own judgment on the issue.

In the weeks leading up to today's hearings, interest groups on both sides of the aisle have focused on Roberts' nomination. Progress for America, a conservative advocacy group that favors Roberts, held a two-week tour of 14 states promoting Roberts' confirmation. Speakers on the tour included Ben Ginsberg, who served as national counsel to the Bush-Cheney campaign in 2000 and 2004, and Victoria Toensing, a former deputy assistant attorney general and chief counsel to the Senate Intelligence Committee.

The group also launched a $400,000 ad buy on Fox and CNN starting August 31 called "Precedent," which showed Sen. Joe Biden, D-Del., informing then-nominee Ruth Bader Ginsburg at her 1993 confirmation hearings that she could choose which questions to answer. The group says in the ad that Roberts also "should not answer questions that force him to pre-judge cases."

Several progressive interest groups, including People for the American Way, remain opposed to Roberts, whose record "continues to be troubling," according to the group's vice president and legal director, Elliot Mincberg. The most important role for senators, he added, is to "ask and insist on straight answers to the right questions," such as Roberts' view on Roe v. Wade.

Other issues likely to be raised in hearings include what Roberts will do to build consensus on the court, his views on church-states issues, and whether to allow cameras in the court.

But both sides are already looking ahead to the next court fight, which could be even more important, given O'Connor's swing vote. (O'Connor has agreed to remain on the court until her replacement is confirmed.) After first saying he would choose O'Connor's successor "in a timely manner," Bush later said that "the list is wide open, which should create some good speculation here in Washington."

O'Connor and first lady Laura Bush said earlier that they hoped Bush would choose a woman to succeed the court's first female justice, although the nomination of a Hispanic, such as Gonzales, would give Bush a place in history.

Last week, Senate Democrats, including Reid, sent Bush a letter asking him to consult with them in choosing O'Connor's successor more than he did in selecting Roberts. "It is especially important to identify a consensus candidate to succeed Justice O'Connor, who has been a voice of reason and moderation," they wrote.

Mincberg called the list of names in Washington circulation - including several people Bush passed over in favor of Roberts, such as Gonzales and appellate court judges Edith Brown Clement and Edith Hollan Jones - "extremely, extremely troubling." He added, "Our concern is with the list as a whole, where there are many people in the mold of [Justices Antonin] Scalia and [Clarence] Thomas and not in the mold of O'Connor."

Experts are split on what kind of nominee Bush will name. Anger over the administration's hurricane response and growing opposition to the war in Iraq may lead Bush to nominate a more moderate associate justice. On the other hand, Bush tends not to shy away from "hard fights," Turley said, and he is likely to face continuing pressure from his conservative base.

The problem facing Democrats now, Turley added, is that if they vote to confirm Roberts, it will be hard to argue ideologically against the candidate Bush puts forward to succeed O'Connor. "Roberts could not be more conservative on most issues," Turley said.