Tuesday, July 19, 2005

Nominee Judge Roberts to be confirmed with 70 to 80 plus votes

Revised slightly on July 20, at 12:50 pm:

...Bush, if he wanted a good shot at a legacy of appointing a solid, conservative Supreme Court justice who may be there until 2040, or so, and therefore outlast and make up for Justice Souter, who is viewed by conservatives as the most tragic mistake of W’s father [there’s that application of the Obama/LBJ quote once again...
You know what I think the most important thing was, I think he [President Bush] sat down with John Roberts [actually the two did sit down and talk last Friday, but Bush did not reach a final decision until around 11:35 am today] and saw a kindred soul. Saw somebody [and he] just liked the person. I think Bush- that’s the way he reacts. If it had been somebody he just loved who would have caused a fight, he still would have nominated him. I think it was the personal confluence of those two gentlemen that led to this. And, the other things are important, but secondary.

So said generally conservative columnist David Brooks [New York Times] in a very good one hour discussion with generally liberal Mark Shields and balanced, but somewhat right leaning Stuart Taylor [National Journal] that was moderated by PBS’s Jim Lehrer on PBS tonight. The discussion immediately followed the President’s short statement to the nation tonight [8:00 pm CST] that he was nominating John Roberts, D. C. Court of Appeals justice, to the Supreme Court to replace Justice O’Connor.

The hour, or so, discussion was interrupted by "drop-in" statements from the likes of Nan Aron [the very liberal Alliance for Justice advocate], Senator Chuck Schumer [D], the very liberal Senior Senator from the State of New York, Ben Nelson [D-NE], the moderate Democrat Gang of 14 Senator, Aron’s very conservative counterpart whose name escapes me and John Cornyn [R], the conservative senator from Texas who sits on the Senate Judiciary committee and who previously sat on the Texas Supreme Court.

The majority view from the above, the web and all over [what can I say, I am a fairandbalanced scavenger of other people's ideas] is that Roberts was a reasonably safe pick for Bush, if he wanted a good shot at a legacy of appointing a solid, conservative Supreme Court justice who may be there until 2040, or so, and therefore outlast and make up for Justice Souter, whose appointment to the Supremes is viewed by conservatives as the most tragic mistake of W’s father [there’s that application of the Obama quote of LBJ once again, "Every man is either trying to live up to his father's expectations or make up for his mistakes."]

Roberts is a safe pick in that much of his career has been spent making conservative arguments, including the twenty-five of thirty-nine arguments he won before the Supreme Court, for which someone else was ultimately calling the shots as to which side to take. This was true in large part when he was Associate Counsel to President Reagan, the principal Deputy Solicitor General for W’s Dad [Will the Senate Judiciary Committee Democrats go after Roberts’ Deputy SG internal memos, as they did with DC Court of Appeals nominee Miguel Estrada--who, BTW, conservative bloggers are already suggesting as a replacement for Roberts on the DC Court of Appeals] or in private practice at the prestigious Washington, DC based law firm of Hogan and Hartson.

So, although Roberts is thought, with reasonable certainty, to have a conservative philosophy, it will be hard to paint him as pre-judging, in a conservative way, cases that will come before the Supreme Court, because the conservative arguments he made for many years are not necessarily his own, but arguments on behalf of parties or clients that his superiors directed him to support. At least, that is an argument that can be be made by the Bush team in place to support Roberts' confirmation. The team is headed up by former Senator and Actor Fred Thompson and its mission is to shepherd Roberts through the confirmation process, and the above is a strong defensive arrow in the team's confirmation quiver. However, the flip side of that is that conservatives are a little more concerned about Roberts' being a true, blue conservative that they would be if he had been authoring conservative opinions for the last ten years, or even five years. This is even more so for social conservatives who want to make dents in Roe v. Wade, if not reverse it outright.

Judge Roberts' expected strength in the confirmation hearings was very troublesome to his liberal critics. Indeed, because Roberts was a DC Court of Appeals judge only for the last two years and apparently has not been the prolific author and speaker that Judge Bork was, Senator Schumer, in the first hour after the Judge Roberts nomination, argued essentially that the Senate can’t Bork Roberts from that paucity of written work product. That's not fair, Schumer seemed to say. The U. S. Senate, according to Senator Schumer [and Senator Durbin], to decide how to vote [or perhaps if Roberts even deserves a vote] need a lot of answers to how Judge Roberts would articulate his judicial philosophy with respect to the major issues, if not cases, with which Roberts will grapple if he sits on the highest court in the land. Or so, Senator Schumer and his liberal colleagues in the Senate will argue.

Schumer was one of three judges on the Senate Judiciary Committee to oppose Roberts’ [16-3] confirmation to the DC circuit court of Appeals [The other "no votes," came from Senators Kennedy and Durbin]. Schumer said that was, in part, because Roberts “did not answer questions fully and openly when he appeared before the Committee.” Senator Schumer gave as an example his request to Roberts- to which Senator Schumer claimed other nominees have responded- to identify three U. S. Supreme Court cases of which Roberts was critical.

Senator Schumer said that Judge Roberts refused to respond to that request when he appeared, last time around, before the Senate Judiciary Committee. No doubt, Judge Roberts would say that giving such answers would be too close to giving his opinion on matters and cases that are likely to come before him- on the DC Court of Appeals, then and on the U. S. Supreme Court, now.

Schumer said “now it is a whole new ball game.” Perhaps.

But, maybe that is so only for Justice Schumer and his more liberal Democratic Senate Colleagues. The betting is that a guy who holds a Harvard college and Harvard Law School degree, clerked for the very well respected 2nd Circuit Court of Appeals Judge Friendly and U. S. Supreme Court Justice Rehnquist, was Associate Counsel to President Reagan and the principal Deputy Solicitor General under President George Herbert Walker Bush, was approved pretty easily to the DC Circuit Court of Appeals, i.e., by unanimous consent, doesn’t have an extensive paper trail and is viewed as more like the gentleman Rehnquist than the sarcastic, hot-tongued Scalia can withstand the Nan Arons and Chuck Schumers of the World.

But, you ask, can't the likes of Schumer, Durbin, Kennedy and Aron marshall a lot of support to oppose Judge Roberts, especially after their armies on the left have been assembled for the showdown at the OK Corral. Possibly, but it is not likely. Yes, as David Brooks pointed out tonight, this might be a tough decision for Hillary and the other 2008 potential Democratic presidential candidates in the senate, e.g., Edwards, Kerry, Biden, etc. On the one hand, they do not want to upset the conventional liberal and farther left primary wings of the Democratic funding base, e.g., George Soros, etc., who will be needed by such candidates for funding and advocacy support.

On the other hand, for the general election, Hillary, Edwards and Biden may want to continue to strike a more moderate note. And, Pols like Senator Obama, who has to be thinking of VP, or even President, in 2008 face a similar problem with this confirmation vote. [You are surprised to hear "President Obama," as a possibility? Chicago Tribune columnist Eric Zorn has noted at least several times on his blog that the order of the Clinton-Obama potential ticket should probably be reversed, and who wants to argue with Eric?]

Most likely scenario? No filibuster, Judge Roberts is confirmed with 70 plus and maybe 80 plus votes. Unlike Bork, Judge Roberts would be very difficult for the hard line, far left Democrats to morph into a back alley abortionist [Although Bork was clearly not a fan of Roe v. Wade, the specter of back alley abortions was raised by Judge Bork's intellectual criticism of Roe, thus morphing the intellectual, Judge Bork into a "back alley abortionist." This has to be one of Ralph Neas proudest moments, no doubt.

Such a morphing won't happen to Judge Roberts for several reasons. One, the Republicans have learned how to defend that game, and they are ready. Former RNC Chairman Ed Gillespie and Former Senator/Actor Fred Thompson are ready for Team Schumer/Aron. Two, Judge Roberts is no Judge Bork [who was once described to me by a liberal as a White Man's Don King]. And, I mean that as no criticism of Judge Bork, who even many liberals would concede was unfairly maligned and caricatured in his Senate confirmation hearing. Team Bush will not let that happen again.

Remember, you heard it first at “Public Affairs.” For a contra view, See Slate, which picked Judge Roberts as second most likely on the short list to get the appointment but anticipated a bit more of a battle in the Senate.
Jeff Berkowitz, Host and Producer of Public Affairs and an Executive Recruiter doing Legal Search, can be reached at JBCG@aol.com