As the confirmation process of Supreme Court nominee John
Roberts Jr. begins, it will be up to the nation’s senators to
decipher who this largely unknown federal judge is and where he
stands on today’s most divisive issues. Though many suspect
the 55-year-old Harvard graduate, if confirmed, would sway the
Court to the right on a range of issues, including abortion rights
and military recruitment, his brief stint as a federal appellate
judge left a thin paper trail with which to substantiate any
speculation on the nominee’s ideological leanings, leaving
Democrats and some liberal advocacy groups with little ammunition
against him. “That lack of a record is problematic for the
left and a little problematic for the right,” said UCLA law
Professor Grant Nelson. Throughout last week, the search to
ascertain who Roberts is and what kind of justice he may be on the
high court has generally resulted in two types of
characterizations. One the one hand, Roberts is often described as
a sound and predictable conservative. On the other, he is said to
be a brilliant open-minded jurist. Roberts’ strong
conservative loyalty is perhaps the one known factor in this highly
enigmatic figure. “Roberts has spent the last part of two
decades working for conservative administrations. I think
he’s probably more of a known commodity. … I think the term
that most applies to him is solid. The last term you’d think
is radical,” Nelson said. Bush has also called the one-time
lawyer “one of the best legal minds of his generation,”
adding that Roberts has probably argued more cases in front of the
Supreme Court than any other living person. “Looking at his
resume, there is no doubt about his intellectual capabilities …
his basic confidence is unquestioned,” said Jonathan Varat,
also a UCLA law professor. In the past, Roberts has garnered
support from both sides of the aisle, and his reputation may
explain the cautious reaction by Senate Democrats thus far.
“They probably think it’s a waste of political capital
to oppose someone who’s highly regarded intelligently and
personally. So why bother?” Varat said. The hushed response
to the Roberts nomination by Senate Democrats has also been
attributed by many to fears of being labeled as partisan
contrarians, an attack often made by the right during the
contentious lower court nominations of the past year. The duration
of the summer will find senators digging into Roberts’ past,
reading his old law reviews and poring over the documents
he’s written in an attempt to learn more about the man.
“It’s a little presumptuous to cast opinions this
early,” said Ari Rabin-Havt, spokesman for Senate Minority
Leader Harry Reid. “The Senate’s going to carefully
review the person and guarantee that he respects the
Constitution.” Democrats, including Sen. John Kerry of
Massachusetts, have repeatedly said they would like to see the
White House release all documents and memos written by Roberts when
he worked under two Republican administrations. But the Bush
administration said it does not intend to release all the documents
because some of the material falls under attorney-client privilege.
While leading Democrats are proceeding with care and attempting to
learn more about the nominee, some liberal advocacy groups have
loudly opposed Roberts, even without the backing of their Senate
allies. Moveon.org, a left-leaning online advocacy group, brought
the fight to the streets of Westwood on Thursday evening, as
members gathered on Broxton Avenue to urge passersby to sign
petitions against the nomination because they believe he is a
corporate lobbyist.
Ambiguous on the issues If confirmed, Roberts could have an
immediate impact on some vital issues, with abortion rights likely
to be the most contentious. In his first year, Roberts would rule
on a case determining whether doctors could perform abortions on
minors without alerting their parents beforehand. “I would be
shocked if he didn’t vote to uphold regulation of …
parental notification,” Nelson said. Roberts would also rule
on the regulation of late-term abortion, an issue on which former
Justice Sandra Day O’Connor, who cast the deciding vote,
sided with the Court’s liberal bloc. She argued that a ban
would force some women to undergo risky surgery. Some of
Roberts’ previous actions may point to the stance he will
take on abortion rights, particularly a 1991 brief Roberts co-wrote
in which he argued that Roe v. Wade, the landmark case legalizing
abortion, was “wrongly decided and should be
overruled.” But even this example doesn’t fully explain
Roberts’ stance on the issue. In 2003, when Roberts was up
for a federal judgeship, he was asked about this brief, to which he
responded that he had made the argument on behalf of the
administration and that if he became a judge, “there is
nothing in (his) personal views that would prevent (him) from fully
and faithfully applying that precedent.” During his first
year, Roberts would also hear cases targeting military recruitment
on college campuses, an issue that recently stirred a heated legal
battle between the military, who believes it has the ability to
recruit in a time of war, and some of the nation’s top law
schools, which are trying to keep recruiters off their campuses
because their presence may violate academic freedom of expression.
But what it really comes down to is that no one can accurately
predict how Roberts will vote. “A lot of this, and it’s
an important caveat, is that it’s really hard to know, in the
case of any judicial nominee, how they will actually rule. Most of
what you’re hearing is a guess as to what he might do,”
said Orin Kerr, a professor at George Washington Law School. In the
coming months, a special committee in the Senate will hold
confirmation hearings where supporters and detractors will be able
to voice their opinions and where the nominee will testify. In the
end, a simple majority vote may decide Roberts’ fate, unless
senators opposed to the nomination decide to filibuster, in which a
three-fifths majority will be necessary. A filibuster, though,
seems unlikely as Roberts continues to get tentative nods of
approval from both sides and legal experts predict a subdued
confirmation process. From what is known so far, there is nothing
in Roberts’ record that could bring the Senate confirmation
hearings to a halt. “They won’t filibuster him. If they
do, they’ll lose,” Nelson said. The court goes back
into session in October, but no concrete timeline for
Robert’s nomination has been set.