Cautious selection could still face confirmation battle
WASHINGTON -- John G. Roberts Jr.'s career reads like a 1950s Boys' Life primer on how to prepare for the Supreme Court: Harvard College, Harvard Law School, a clerkship with Justice William Rehnquist, a stint in the Justice Department arguing cases in front of the high court, and a short preparatory tenure on the Court of Appeals for the District of Columbia Circuit.
Roberts's personality -- genial and businesslike, without the grating edge of some more aggressively conservative Supreme Court candidates -- gives him the air of a reasonable, decent person who will approach his work with a sense of duty.
In passing up potential nominees with bigger personalities, stronger followings, and longer tenures on the bench, President Bush is clearly hoping that Roberts's Boy Scout profile will help him avoid a furious confirmation battle.
Nevetheless, a battle seems likely.
Even before the nomination, liberal advocacy groups were scrutinizing every line of a Supreme Court brief Roberts wrote while working in the first Bush administration that questioned the reasoning behind Roe v. Wade, the decision giving women the right to an abortion.
Roberts can argue that he was expressing the views of the first Bush administration, not necessarily his own. But with Roberts in line to replace Justice Sandra Day O'Connor, a court moderate whose vote was considered decisive in two major abortion decisions, defenders of the right to abortion are unlikely to be swayed.
The role of his lawyer wife, Jane Sullivan Roberts, in Feminists for Life, a group dedicated to overturning Roe v. Wade, is also certain to raise liberal eyebrows.
Bush's fellow Republicans hold the edge in the Senate, even though Democrats have enough votes to block a nomination through a filibuster. Moderates in both parties have agreed that a filibuster would be used only in extreme cases, and Bush is clearly betting that Roberts, a conservative judge in a conservative era, represents nothing extreme.
In fact, many of the same senators who will vote on his Supreme Court nomination approved his nomination to the appeals court on a voice vote two years ago.
But the same qualities that mark Roberts as a safe choice could also leave him without the passionate defenders a nominee needs to make it through the confirmation gantlet. Conservative Justice Antonin Scalia got kid-gloves treatment during the confirmation process because he was the first-ever Italian-American nominee. O'Connor and Ruth Bader Ginsburg faced little opposition as the first women on the court. Justice Clarence Thomas, who is African-American, accused senators of racism for highlighting the testimony of a former colleague who claimed he had sexually harassed her. He fought back to win confirmation.
Roberts may yet win the enthusiastic backing of religious conservatives, though there were other candidates who were far more appealing to the religious right -- candidates with clearer record of backing a conservative social agenda.
Bush may inadvertently have raised the hopes of other groups who are likely to be disappointed by the choice of Roberts. The president ignored the advice of some moderate senators who urged him to choose someone with extensive life experience outside the courtroom; ignored the counsel of his own wife to appoint a woman; and perhaps most significantly, ignored the requests of Hispanics who believed the time was right for the first Hispanic on the nation's highest court.
Now, Roberts will enter a long period of more or less enforced silence, as he prepares for confirmation hearings amid what could be the most intense political atmosphere ever encountered by a Supreme Court nominee.
Hundreds -- and probably thousands -- of researchers will comb through his judicial opinions, legal memos, and arguments from his years in private practice. Some will explore unseen corners of his personal life.
Advocacy groups on the left and right together could spend as much as $100 million on the nomination fight, which is about what it costs to win a major party's presidential nomination.
Past Supreme Court nominees have faltered on quirky unforeseen issues, such as Judge Douglas H. Ginsburg's marijuana smoking and role in running a computer dating service.
Bush had been urged by some Republicans to wait until late in the summer to name O'Connor's replacement, depriving opponents of the chance to spend the congressional recess in August gathering ammunition.
But the revelation that Bush's political adviser Karl Rove leaked information about a CIA operative, despite White House assurances he had not done so, may have changed the equation. Instead of spending the next few weeks focused on Rove, the Washington establishment will focus on Roberts.
Bush is betting that what the establishment sees -- a handsome, well-qualified man of good judgment -- will be all that it finds, and that Roberts, who is 50, will serve on the Supreme Court long after the Bush administration fades into history. 