July 20, 2005


A scant paper record of personal views (Charlie Savage, July 20, 2005, Boston Globe)

The looming debate over Roberts's nomination is likely to focus on how forthcoming he will be about his personal views, since nearly all the conservative legal positions he has articulated were on behalf of clients. Roberts has been a judge only since 2003, when he was confirmed to the US Court of Appeals for the District of Columbia Circuit without opposition in the Senate.

Senator Charles Schumer, from New York, was one of three Democrats on the Judiciary Committee to vote against Roberts for the court of appeals and said last night he must be more open this time. ''He didn't answer questions fully and openly when he appeared before the committee," Schumer said. ''For instance, when I asked him a question that others have answered, to identify three Supreme Court cases of which he was critical, he refused. But now it's a whole new ballgame. . . . I hope Judge Roberts, understanding how important this nomination is -- particularly when replacing a swing vote on the court -- will decide to answer questions about his views."

Since becoming a judge, Roberts has been involved in few notable decisions. One exception, however, demonstrated that Roberts is a follower of the ''federalist revolution," in which conservatives have sought in recent years to restrict the federal government and return policy-making power to the states. Retiring Justice Sandra Day O'Connor was a leader in this movement.

In 2003, Roberts joined in a dissent on the appeals court in a case involving a California company that had been blocked from developing an area where a rare species of toad lived. The dissent, citing recent Supreme Court cases striking down acts of Congress for having exceeded its authority, said the federal government lacked the power to protect endangered species.

Roberts is also a member of the Federalist Society, a fraternity of legal conservatives whose members often espouse the view that the Constitution should be interpreted literally and oppose ''activist" judicial decisions that find implicit but unwritten rights in the document -- including the unwritten right to privacy from which abortion rights are derived.

President Bush echoed their credo last night when he introduced Roberts as a judge who will not ''legislate from the bench." Groups across the spectrum have cited Roberts's Federalist Society membership to support their assertion that his views match those he crafted while working for the Reagan and Bush administrations.

As deputy solicitor general in the administration of George H.W. Bush, Roberts coauthored a Supreme Court brief arguing that Roe v. Wade was ''wrongly decided and should be overturned" because the court's conclusion in Roe ''that there is a fundamental right to abortion . . . finds no support in the text, structure, or history of the Constitution."

However, during his 2003 confirmation, Roberts said, ''Roe v. Wade is the settled law of the land. . . . There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

Bush's Strategy for Court: Disarm the Opposition (ADAM NAGOURNEY, 7/20/05, NY Times)
As often is the case with Mr. Bush, the decision appears almost obvious in retrospect: a choice that is at least good enough for conservatives, who hailed the nomination with a barrage of favorable reaction that went out even before Mr. Bush appeared in the East Room on Tuesday evening, yet someone who is genial and enigmatic enough to confound Democrats as they head into what they had long expected to be a difficult battle.

By suggesting that Mr. Bush was giving serious consideration to a woman or minority even if he did not choose one in the end, the White House may have minimized any political repercussions Mr. Bush may have suffered by choosing a man to replace the court's first woman.

"They've artfully threaded the needle," said a senior Democratic leadership aide, who declined to be identified, explaining the challenge that the party now faces..

A Fight, Maybe, but Not a Battle: Roberts should appeal to staunch conservatives yet be insulated from fierce opposition. (Ronald Brownstein, July 20, 2005, LA Times)
With the nomination Tuesday of John G. Roberts Jr. to the Supreme Court, President Bush reaffirmed his commitment to a bold-stroke presidency — but also signaled an uncharacteristic interest in reducing his exposure to political risk.

Bush repeatedly has shown a willingness to accept pitched political battles as the price of pursuing dramatic change. The selection of Roberts, widely considered more conservative than retiring Justice Sandra Day O'Connor, underscores Bush's desire to tilt the court to the right.

"For me as a conservative, it is a very impressive pick because it rejects a superficial analysis that says: 'I'm going to pick a woman or I'm going to take a moderate and dodge a fight,' " said veteran GOP strategist Bill Kristol.

But in Roberts, a judge since 2003 on the powerful U.S. Court of Appeals for the District of Columbia Circuit, Bush also chose a nominee unlikely to inspire either the most enthusiasm among hard-core conservatives or the most intense opposition from Democrats and liberal groups.

In effect, Roberts may represent an effort to thread the needle in filling the court vacancy. The selection could offer Bush an opportunity to maximize his chance of a relatively smooth confirmation while minimizing the danger of either conservative disaffection or scorched-earth Democratic opposition.

EDITORIAL: A judicious choice (LA Times, July 20, 2005)
By all accounts, John G. Roberts Jr. is a likable guy. His list of friends and supporters, brandished by President Bush on Tuesday as he announced Roberts as his nominee for the Supreme Court, stands at 156 and counting, spanning the ideological spectrum, with a litany of adjectives that would make any mother (or president for that matter) proud.

Whether Roberts is the right choice for the court is another question. Although some liberal interest groups rushed to portray Roberts as a dangerous extremist, his nomination seems to signal a desire on the part of the White House to avoid a nasty confirmation battle. Given that Bush passed over some of the more extreme conservatives who'd been mentioned as candidates, we may yet witness a civil debate about the Supreme Court, and the president will deserve some credit if we do. In any event, Bush was right Tuesday to insist that the Senate act on his nomination before the court reconvenes in October.

Roberts is a shrewd choice for many reasons, but perhaps his most important characteristic is a near-ideal mixture of familiarity and inscrutability.

A Brief on the Nominee: He's low-key, smart and effective and does not come with much political baggage. As a lawyer, he argued cases across the spectrum. (David G. Savage, Richard B. Schmitt and Henry Weinstein, July 20, 2005, LA Times)

When President Bush's lawyers made a list of potential nominees to the Supreme Court, they put John G. Roberts Jr. at the top.

The appeals court judge was seen as smart and cautious, conservative in his leanings, but not an outspoken ideologue prone to making brash pronouncements. And he was seen as a persuader, someone whose personable approach and intellect could make him a leader on the high court.

Roberts, 50, was also the clear favorite of Washington's Republican legal establishment — whether to succeed his old boss, Chief Justice William H. Rehnquist, or, as it turned out, to fill the seat left by the departure of Justice Sandra Day O'Connor.

Even leading Democratic lawyers, including former Clinton-era Solicitor General Seth Waxman and the late Lloyd Cutler, had endorsed his nomination to the U.S. Court of Appeals for the District of Columbia Circuit two years ago. They said he was a superb lawyer, a brilliant writer and an effective oral advocate.

His personal resume seems impeccably upright as well: a native of Buffalo, N.Y., who grew up in Indiana; captain of the high school football team; worked summers in a steel mill to help pay his way through college; top of his class at Harvard Law School.

He is described as low-key and assiduous; compared with some of the other candidates Bush was considering, he seems almost a little boring.

In Pursuit of Conservative Stamp, President Nominates Roberts (TODD S. PURDUM, 7/20/05, NY Times)
Mr. Bush has made no secret of his desire to impose a more conservative stamp on the Supreme Court, and he apparently named Mr. Roberts with confidence that he would help him do so.

Almost instantly, the conservative and liberal interest groups that have spent years preparing for a Supreme Court vacancy swung into action.

The conservative Progress for America called Judge Roberts a "terrific nominee," while Naral Pro-Choice America denounced him as an "unsuitable choice," and a "divisive nominee with a record of seeking to impose a political agenda on the courts."

But significantly, Senator Harry Reid of Nevada, the Democratic leader of the body that will determine Judge Roberts's fate, was much more subdued, hewing to the Democrats' stated strategy of demanding a thorough vetting of any nominee by describing Judge Roberts as "someone with suitable legal credentials," whose record must now be examined "to determine if he has a demonstrated commitment to the core American values of freedom, equality and fairness."

A Judge Anchored in Modern Law (LINDA GREENHOUSE, 7/20/05, NY Times)
There are others, potential nominees whom the president might have chosen, who probably also feel a lump in the throat when they think about the Supreme Court, but it is caused by anger rather than reverence. That is not to say that Justices Antonin Scalia and Clarence Thomas, whom President Bush had offered as his models for a Supreme Court selection, do not respect the institution, but their stance is one of opposition to many currents of modern legal thought that the court's decisions reflect.

Now the question is whether Judge Roberts, if confirmed, will, like those two justices, commit himself to recapturing a distant constitutional paradise in which the court was faithful to the original intent of the framers or whether, like the justice he would succeed, he finds himself comfortably in the middle rather than at the margin.

His résumé suggests the latter, as does his almost complete lack of a paper trail. There are no flame-throwing articles or speeches, no judicial opinions that threaten established precedent, no visible hard edges.

To the extent that as a judge he has expressed a limited view of federal power, that is consistent with the views of Justice Sandra Day O'Connor, whom he is being named to succeed, and would not change the balance on the court. He signed briefs as a Justice Department lawyer conveying the anti-abortion position of the first Bush administration, but he has given no indication of his personal or judicial views on abortion.

The man who could shift the court right (Warren Richey, 7/21/05, The Christian Science Monitor)
[T]he replacement of centrist swing voter Justice Sandra Day O'Connor with someone likely to vote more consistently with the court's conservative bloc means that an entire range of 5-to-4 O'Connor precedents over the past two decades may soon be in jeopardy. They include abortion-rights restrictions - such as parental notification laws and bans on so-called "partial birth" abortions. Affirmative-action programs may also be at risk.

At the same time, Roberts appears to be a reliable vote in support of the high court's revival of states' rights. And last Friday, he was a member of the three-judge appeals-court panel in Washington, D.C., that upheld the president's wartime power to conduct terrorism tribunals at the Guantanamo Bay Naval Base.

In selecting Roberts, Mr. Bush dipped into the very top of the conservative legal elite in the United States. Few candidates at age 50 have a résumé that can match Roberts's. And although he is a white male, rather than a woman or member of a racial minority, his personal story is not without compelling touches.

A Bold Choice (New York Sun, July 20, 2005)
President Bush made a bold choice in selecting a distinguished lawyer and federal appeals court judge, John Roberts, to succeed Justice Sandra Day O'Connor on the Supreme Court. "I have thought about a variety of people, people from different walks of life," the president told reporters yesterday. "I do have an obligation to think about people from different backgrounds." But in the end, Mr. Bush resisted the politically correct pressure to limit his choices to a particular gender or race. The president evidently wanted the most qualified jurist, one most capable of delivering on Mr. Bush's campaign promise of restoring a sound constitutionalism to the Court. That is, a justice who would not legislate from the bench.

Mr. Bush could scarcely have done better than Mr. Roberts.

Posted by Orrin Judd at July 20, 2005 9:12 AM

Doesn't matter. The MSM will latch onto "Roe is wrong" and run with it.

Posted by: Gideon at July 20, 2005 9:14 AM

The good news is that Roberst et ux are described by the NYTimes as devout catholics. I just spoke to a former partner of Mrs. R, who said that she (Mrs. R) is an activist in a group called Feminists for Life.

If Judge R is confirmed, a vote to uphold Roe will lead to nights spent in the Garage.

Posted by: Robert Schwartz at July 20, 2005 12:42 PM


I can't wait to hear Leahy ask him about that possibility!

Posted by: jim hamlen at July 20, 2005 3:35 PM