By BILL STRAUB
Scripps Howard News Service
July 20, 2005
One protest, staged by the National Organization for Women, took place outside a Senate office building Wednesday - less than 15 hours after President Bush announced that the 50-year-old Roberts, a judge on the Court of Appeals for the District of Columbia, was his choice to replace retiring Justice Sandra Day O'Connor.
"We refuse to allow Roberts - who is such a stealth opponent of women's rights - to pass the Senate confirmation process," said NOW President Kim Gandy. "George W. Bush just guaranteed the fight of his political career with this nomination."
But with the exception of pro-choice activists, reaction to Roberts' nomination was restrained, indicating the fight over his elevation to the nation's highest court won't resemble the political street brawls that characterized Judge Robert Bork's failed nomination in 1987 and the confirmation of Justice Clarence Thomas in 1991.
Senate Democratic Leader Harry Reid, of Nevada, who would be expected to lead any fight against the Roberts nomination, acknowledged Bush "has chosen someone with suitable legal credentials," but promised close scrutiny.
"The Senate must review Judge Roberts' record to determine if he has a demonstrated commitment to the core American values of freedom, equality and fairness," Reid said. "The nominee will have an opportunity to testify before the Senate Judiciary Committee and make his case to the American people."
Democrats privately admit any attempt to waylay the Roberts nomination could prove formidable. Roberts received high marks for his judicial temperament, experience and legal abilities. He has issued few written opinions since joining the appellate court in 2003, leaving potential critics with empty ammo cartridges.
"President Bush has demonstrated his respect for the law, the courts, and the Constitution by nominating Judge John Roberts - a true 'lawyer's lawyer' - to the Supreme Court," said Richard Garnett, a professor of law at the University of Notre Dame who clerked with Roberts for Chief Justice William Rehnquist. "Roberts is a brilliant, careful, and wonderfully gifted lawyer. Everyone familiar with his work - whether he or she is left, right, or center - acknowledges Roberts as one of the best appellate lawyers of his generation."
E. Christopher Murray, a civil liberties attorney in Garden City, N.Y., said Roberts represents "the worst nightmare for liberals" - a candidate with extreme conservative views who doesn't appear to have been in the sort of sticky situations that opponents can use to assure his defeat.
"Judge Roberts is young, articulate, and a quality attorney who is unlikely to have any personal baggage," Murray said. "Thus, the issue will be, can you deny confirmation of a Supreme Court nominee who is qualified simply because of his ideology? With a Republican-controlled Senate, the answer will be no."
But the intimidating landscape isn't stopping organizations that support abortion rights from gearing up. They maintain Roberts needs to express some fidelity toward Roe v. Wade, the 1973 privacy case that legalized abortion nationwide, to pass muster.
O'Connor, renowned for her position as a swing vote on the nation's highest court, supported Roe during her court tenure. Her departure still leaves a court majority that supports abortion rights, but that didn't stop activists from worrying about Roberts' views.
"Everything we know about Judge Roberts' record indicates that he will be a solid vote against women's rights and Roe v. Wade," said Eleanor Smeal, president of the Feminist Majority. "If he is to be confirmed by senators who support women's rights, he must say where he stands on Roe and the right to privacy. The burden is on him."
Feminists are concerned for several reasons. In 1991, while serving as principal deputy solicitor general during the administration of the current president's father, former President George H.W. Bush, Roberts included language in one brief before the court that read, "We continue to believe that Roe was wrongly decided and should be overruled."
Roberts later said he was speaking for the Bush administration and not expressing his personal views. And during the confirmation hearing for his present position, Roberts told the Senate Judiciary Committee that he considered Roe "the settled law of the land," adding that "there's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
But feminists remain suspicious. They privately note that Roberts' wife, Jane, who is also a successful lawyer, is an active member of an organization called Feminists for Life, a group that opposes abortion - a possible tip-off to Roberts' true feelings on the issue.
Roberts' record, according to Debra Ness, president of the National Partnership for Women & Families, is "alarming."
"Judge Roberts now bears the burden of distancing himself from his own record and demonstrating his commitment to equal justice under the law," Ness said. "Nearly every issue that matters to women and families can be affected if Judge Roberts becomes a justice - fairness in the workplace; equality in education; work/family policies; access to quality affordable health care; reproductive rights; economic security; and justice for our most vulnerable citizens."
Roberts' supporters assert his foes are grasping at straws. Brian McCabe, president of Progress for America, a conservative advocacy group, vowed that his organization will "defend Judge Roberts from the left's predictable and premeditated character assassination attempts" and pledged $18 million in support of his confirmation.
"Judge Roberts is a man of great character who deserves genuine consideration, not automatic attacks and partisan indignation based on nothing other than the fact he was nominated," McCabe said.
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