By DAVID WESTPHAL
July 19, 2005
Filling the first court vacancy in 11 years - the crucial swing vote held by a retiring Sandra Day O'Connor - Bush was handed a grand opportunity to make a lasting mark on the closely divided court. He responded by picking a judge who has been espousing conservative judicial dogma for more than two decades.
Although he has been a judge for only two years, Roberts, 50, has an extensive written record on behalf of Republican administrations, notably on the volatile issue of abortion.
"We continue to believe that Roe was wrongly decided and should be overruled," Roberts wrote in a 1991 Supreme Court brief as deputy solicitor general.
Despite what will be an intense fight, though, there were early hints that Roberts was headed for likely confirmation. Notably, Bush passed over several candidates who would have made conservative groups even happier. And Democrats Tuesday night were reacting with marked caution, not fiery condemnation. Roberts will be no red-meat target for opponents.
The president made his pick with gusto, making a rare prime-time announcement in a bid to galvanize a nationwide television audience.
"I believe that Democrats and Republicans alike will see the strong qualifications of this fine judge, as they did when they confirmed him by unanimous consent to the judicial seat he now holds," Bush said at the White House.
In the process, Bush touched off what is likely to be a spirited and expensive fight in the U.S. Senate over Roberts' confirmation. Tens of millions of dollars have been squirreled away in anticipation of a classic Supreme Court battle, and Roberts' appointment makes it likely that much of it will be spent.
In the weeks leading up to Tuesday's pick, a few prognosticators thought Bush might try to head off this battle and offer a consensus appointment that in the O'Connor mold. But Tuesday night he made it clear that his pick would be an agent for change.
"He will strictly apply the Constitution and laws - not legislate from the bench," Bush said.
As presidents have learned time and again, it's never safe to assume the judicial leanings of a Supreme Court justice newly armed with a lifetime appointment. But odds are strong that Roberts would align himself with Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist to form a rock-solid conservative core that would need only a single extra vote to make new law - a far different alignment from the one that's existed for the last decade.
As a clerk for Rehnquist, then as a lawyer in the administrations of Ronald Reagan and Bush's father, Roberts repeatedly proved his conservative mettle, persuading legions of Republican heavyweights of his judicial orientation. He also won political points during Bush's contested 2000 victory against Democrat Al Gore, working behind the scenes on Bush's successful case before the Supreme Court.
But given his short stint as appellate judge in the District of Columbia circuit, White House officials contend Roberts will be a tough target for opponents to shoot at, with a thin paper trail of rulings. Beyond that, Roberts will be buoyed by his reputation as a legal dynamo who has argued 39 cases before the Supreme Court and whose intellectual weight makes him a high court natural.
Crucial to whether Roberts' nomination results into a historic free-for-all is the reaction of 14 moderate senators who stepped in earlier this year to defuse a bitter Senate fight over Bush appeals court nominees. If some of the seven Democrats in that group signal that Roberts is acceptable, the Senate battle could cool.
In an early indication, one of the Democrats, Sen. Joe Lieberman of Connecticut, told reporters last week that Roberts would be "in the ballpark," making a Senate filibuster against him unlikely.
But holding off the well-funded machines that have been established to support, and oppose, any Bush nomination will be a tall order - particularly on the issue of abortion.
As deputy solicitor general in 1991, Roberts was co-author of an administration brief that said clinics receiving federal money should be prevented from discussing abortion with their patients. As part of that brief, which was ultimately endorsed by the court, Roberts wrote that the Supreme Court's 1973 decision legalizing abortion "finds no support in the text, structure, or history of the Constitution."
Supporters will argue that Roberts' brief represented the position of his client, the first Bush administration, and not his own view. Nevertheless, the abortion issue will hang heavily over his confirmation proceedings. So will the reality that his appointment could dramatically alter the court's course on issues ranging from religious expression to affirmative action.
Bush got plenty of advice over how he could make his mark in his first Supreme Court nomination. His wife urged him to appoint a woman. Minority groups suggested he appoint the court's first Latino.
But the president had his own agenda. Notwithstanding the Iraq war, his first-term tax cuts and his Social Security plan, changing the fundamental balance of power on the Supreme Court could be the president's biggest legacy. And early indications are that Roberts, a young man who could serve on the court for decades, will put him on course toward that goal.
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