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Democratic block of Roberts unlikely

By Edward Lazarus
FindLawexternal link columnist
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(FindLaw) -- With President Bush's nomination of U.S. Court of Appeals for the District of Columbia Circuit's Judge John Roberts to replace retiring Supreme Court Justice Sandra Day O'Connor, I believe the prospect of a titanic confirmation battle has diminished.

It is not because Roberts is a moderate. Most people think he's very conservative in his jurisprudential views -- conservative enough, in fact, probably to warrant a real fight on ideological grounds. But most likely, that battle won't be joined in a serious way. And the reason is simple: It's a fight the Democrats will have a terribly hard time winning.

Roberts a tough target

Roberts is whip-smart and has terrific credentials. He was at the top of his class at Harvard Law, and he served as a law clerk for the legendary federal appellate judge Henry Friendly and then for Justice William Rehnquist when he was an associate on the high court.

Roberts built a terrifically successful private practice at Hogan and Hartson and was a highly regarded advocate before the Supreme Court -- in private practice and as deputy Solicitor General in the Justice Department during the elder President Bush's administration.

Along the way, Roberts worked in the Reagan White House and Justice Department. And in 2003, with Bush's nomination and the Senate's confirmation, he became an appellate judge on the D.C. Circuit - often thought of as the nation's second most prestigious court.

Second, Roberts is telegenic, articulate, and well-liked even by ideological adversaries.

Roberts received broad support when Bush nominated him to the appellate bench in 2003; any objections now may seem manufactured or hypocritical.

Roberts's command of the law is superb, and he's sharp enough to be able easily to separate what the law is, from what he'd like it to be -- at least, for the purposes of confirmation hearings, if not on the bench. So Democratic senators -- none of whom have the command of the law Roberts has -- will have a very tough time making Roberts look bad if that's what they set out to do.

Republican backers of Roberts's nomination will be arguing loudly that his combination of brains, experience, and collegial temperament should be the end of the confirmation story. These qualities are very important in a nominee. But a confirmation process isn't just meant to give opponents a chance to stop the nomination in its tracks; it's also meant to allow the American people to see exactly what we are getting.

It's our last chance, through our representatives, to ask questions a future Supreme Court justice must answer rather than simply listening to the justice's own, often legally-binding words.

Dems should examine Roberts' record

For this reason, it would be a shame if Democrats, sensing the likely futility of opposing Roberts, forego a substantive examination of Roberts' views.

Admittedly, ideologically-charged confirmation hearings can be destructive. If a real battle heats up, interest groups on both sides will be pulverizing the public with truth-bending political spots for and against the nominee. It will be ugly and unseemly and runs the risk of deepening the already great fissures in our political culture.

Making this particular hearing an ugly one may also drain some of the public's resources, and sympathy, when they are more urgently needed later -- for instance, if Bush nominates an extremist to replace Chief Justice Rehnquist when he retires. Democrats may well want to save their fire for that contingency, rather than focusing it on Roberts.

But it has to emphasize that a Supreme Court confirmation hearing creates one of the rare moments when public attention is riveted on the fundamentals of our government, basic questions of what we believe our constitutional rights to be and the role of judges in protecting them.

So whatever the tone of these hearings -- and it ought to be respectful and measured -- they should be substantive, and thorough: We should, and are entitled to, go into serious and substantive questions related to these topics with Roberts.

Debate long overdue

It has been more than a decade since the last Supreme Court confirmation hearing, of Justice Stephen Breyer. And it has been almost two decades since the last confirmation hearing -- Robert Bork's in 1987 -- that produced a genuine debate over competing conservative and progressive visions for the Constitution.

We are overdue for another round. Since that time, the Court has moved steadily to the right and has established a long track record of conservative judicial activism, overturning parts of more than 30 federal laws. Since that time, the Supreme Court has decided a presidential election using transparently inadequate justifications -- as I discussed in a previous columnexternal link.

There is a lot to talk about. How should judges interpret the Constitution? What are the limits on federal legislative power? What role should the Court play in protecting the channels of democratic governance, such as ensuring the principle of one-person/one-vote? Does the Constitution contain any unenumerated rights and, if so, does that include a right to abortion? Under what circumstances should the Supreme Court revisit past precedents? How does one balance the constitutional protections of personal privacy against the needs of national security?

The list goes on and on. But the point is succinct: The Roberts nomination presents an important moment for asking the questions and having the conversation -- regardless of outcome.

And Roberts, precisely because he has thought through many of these issues during his exemplary career, is an ideal nominee around which to organize the dialogue.

Roberts' record

Roberts does not have much of a track record of speaking in his own voice about constitutional issues or matters of public policy.

Roberts has only been on the D.C. Circuit for two years -- not enough time to create the kind of paper trail that got Robert Bork in trouble. He has, however, written a potentially controversial dissentexternal link casting doubt on the constitutionality of the Endangered Species Act, and he certainly should be questioned about it.

As part of his government service, however, Roberts created a substantial paper trail that may shed important light on his views. Of greatest note so far, are the briefs he signed or co-authored while serving as deputy Solicitor General in the elder Bush's administration.

These briefs are advocacy briefs -- speaking in the voice of the government and not his own. We do not know what role Roberts' personal views played in shaping these briefs. We do know that Roberts was the "political" deputy in that office -- which means that he was selected specifically for his ideological compatibility with the administration, as opposed to simply being a civil servant in the Justice Department.

In this role, it is likely that Roberts helped make administration legal policy, rather than just carrying it out. At a minimum, he also very likely agreed with the policies that he used his legal skills to advance. While Roberts' supporters will surely try to dismiss the government briefs he signed as simply the work of a lawyer advancing the views of his client (the president), it may well be appropriate to hold Roberts accountable for what those briefs say.

For the moment, suffice it to say that Roberts played a significant role in drafting a number of briefs that raise significant questions (as well as being the basis for deep liberal concern).

Roberts on Roe

Women's groups in particular are likely to take to the barricades. This is because Roberts co-authored a brief in Rust v. Sullivanexternal link calling explicitly for Roe v. Wade to be overturned, even though the constitutionality of Roe was only indirectly at issue in that case.

The question Rust raised directly was whether the federal government could, consistent with the First Amendment, "gag" private counselors who received government funds -- preventing them from even mentioning the option of abortion to those they counseled. Roberts argued the government could constitutionally do this, and the Court so held. In its holding, the Court did not see fit to re-examine Roe's constitutionality in depth, let alone to overturn it -- suggesting that the argument that Roberts's brief had raised was more political grandstanding, than necessary legal analysis.

In addition, in Bray v. Alexandria Women's Health Clinicexternal link, Roberts co-authored an amicus brief supporting the position of various radical anti-choice groups arguing that blocking abortion clinic access was not an act of discrimination against women -- even though it affected exclusively women, who were targeted based on a condition unique to women: pregnancy.

Other briefs in which Roberts was involved took other controversial conservative stands. He co-authored a brief urging the Court to find it constitutional for a public school to sponsor a prayer at graduation ceremonies. The Court declined that invitation in Lee v. Weismanexternal link.

Roberts also co-authored the government's brief in United States v. Eichmanexternal link, defending the constitutionality of the federal law criminalizing flag burning, even though the Supreme Court one year earlier, in Texas v. Johnsonexternal link, had ruled a similar state statute unconstitutional. The Supreme Court struck the law down.

Might Roberts' willingness to urge a virtually-instantaneous overruling of Texas v. Johnson, here, presage a similar receptiveness to an overruling of the much-longer-in-the-teeth Roe, or the more recent decision reaffirming Roe, in 1992, Planned Parenthood v. Caseyexternal link?

In the end, assessing these aspects of Roberts' record must await much more information about Roberts' role in these cases. What we do know is that leaving that question aside, these briefs and other aspects of Roberts' record provide -- at a minimum -- a solid basis on which to engage the nominee in a serious debate over his substantive views.

Brains, credentials and personality are important in a Supreme Court nominee. But they are not as important as a nominee's substantive views. We may rationally prefer a nominee who is less brilliant, but more liberal, over a conservative star like Roberts. Intelligence is not a trump card -- even on the Supreme Court.

Ultimately, the Senate's job is not to decide whether Roberts is a great lawyer and a good guy, but to test the soundness and integrity of his vision of the Constitution and the Supreme Court on which he hopes to sit.

And going through this process is not merely appropriate, it is a necessary part of national debate over our legal heritage that is long overdue.

Edward Lazarus, a FindLawexternal link columnist, teaches law in Los Angeles, California, and is a former federal prosecutor. He is the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."

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