Political Pulse August 2005

De-Escalation

John Roberts's nomination may result in something totally unexpected—a civil debate on the issues.

Before President Bush announced his Supreme Court pick, the political armies of the Right and Left were girding for war. Tony Perkins, president of the Family Research Council, said that his organization was "ready to energize the grassroots and use every resource available." The confirmation fight was going to be the mother of all political battles, "a titanic clash between two competing and radically different versions of the Constitution," predicted Ralph Neas, president of People for the American Way.

Then Bush presented John G. Roberts Jr., who is not a threatening or defiant figure. "I always got a lump in my throat whenever I walked up those marble steps to argue a case before the Court," Roberts said after Bush introduced him on prime-time television.

The confirmation process is just beginning, but at this point, there's no reason to expect an ugly personal fight like the one over Clarence Thomas in 1991. Roberts's "credentials look very good," said Senate Minority Leader Harry Reid, D-Nev. "He seems to be a very nice man." What Roberts doesn't seem is doctrinaire. Harvard law professor Heather Gerken said, "He's the kind of advocate that people trust, a straight shooter, someone who doesn't oversell his case."

So the country might avoid a bitter cultural showdown, unlike in 1987 when President Reagan nominated Robert Bork. Roberts is supposed to be the un-Bork, a confirmable conservative. "John Roberts is a very difficult target for the Democrats to get much traction against," said University of Connecticut political science professor David Yalof, an expert on the confirmation process.

Bork came across as a menacing figure, a radical conservative who threatened the status quo. "In Robert Bork's America," Sen. Edward Kennedy, D-Mass., declared, "there is no room at the inn for blacks, no place in the Constitution for women, and there should be no seat on the Supreme Court for Robert Bork."

Roberts is being labeled an "establishment conservative," which sounds like he's no threat to the status quo, no Bork. Senate Majority Leader Bill Frist, R-Tenn., called him "a mainstream conservative who understands that the role of the judge is to interpret the law and the Constitution and not to legislate from the bench." Yet critics like MoveOn.org say, "Instead of a mainstream jurist ... Bush chose another right-wing crony."

Bork or un-Bork? Kennedy said, "What all Americans deserve to know is whether Judge Roberts respects the core values of the Constitution and falls within the conservative mainstream of America, along the lines of Sandra Day O'Connor. That is the issue." In other words, we'll see.

Roberts's record on the abortion issue will be scrutinized from every angle. What does it add up to? In 1990, when Roberts was deputy solicitor general, he co-authored a legal brief that told the Supreme Court, "We continue to believe that Roe was wrongly decided and should be overruled." That statement has liberal groups very concerned.

In 2003, when the Senate was weighing his nomination to a federal court of appeals, Roberts said, "The statement in the brief was my position as an advocate for a client." The client was the Bush I administration. Roberts's argument: I was just doing my job. He went on to say, "Roe v. Wade is the settled law of the land."

Yikes! say foes of abortion rights. They have to remind themselves that Roberts was up for confirmation to a lower court. He added in his testimony, "The judge is bound to follow the Supreme Court precedent, whether he agrees with it or disagrees with it." In other words, following precedent will be my job.

But the Supreme Court is different. It creates precedent.

In a 2000 interview with The Baltimore Sun, Roberts said of the Rehnquist Court, "The conventional wisdom is that this is a conservative Court. We have to take that more skeptically." He went on, "On the three issues that the public was most interested in—school prayer, abortion, and Miranda rights—the conservatives lost on all." That sounds like someone who would like to see the Court move to the right.

The American public is not intensely polarized over Roberts. In a Gallup poll taken last week for USA Today and CNN, Republicans had an overwhelmingly positive opinion of him (80 percent). Only 24 percent of Democrats had a negative impression of Roberts. Nearly two-thirds of Democrats were either positive (35 percent) or neutral (30 percent). In an ABC News/Washington Post poll, Democrats were split over whether the Senate should confirm Roberts (41 percent said yes; 40 percent said no). Overall, the public favored confirmation by more than 2-to-1 (59 percent to 23 percent).

Roberts certainly faces a vigorous challenge. But the country may end up with something totally unexpected—a serious and civil debate on the issues. There's not much talk right now of using the ultimate weapons—the filibuster or the "nuclear option" that would ban filibusters of judicial nominees. Sen. Ben Nelson, D-Neb., one of the Senate's "Gang of 14," said last week, "Sometimes there are hallway whispers. There's none of that to date. It's still new, but I'm not hearing it."

Some on the right, and many on the left, are suspicious of Roberts. What does he really believe? But both sides may be forced to conclude, reluctantly, that Roberts is the best they're going to get.

Presented by

William Schneider is the Cable News Network's senior political analyst. He is also a resident fellow at the American Enterprise Institute in Washington, D.C., and a contributing editor for the Los Angeles Times, National Journal, and The Atlantic Monthly. His column appears every week in National Journal, a weekly magazine covering politics and government published in Washington, D.C.

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