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Friday, December 8, 2023

Not Much of a Paper Trail on Court Choice

John Roberts is hardly a conservative firebrand with a lengthy record of court opinions and law review articles that could kindle a scorched-earth confirmation fight for the Supreme Court.

John Roberts is hardly a conservative firebrand with a lengthy record of court opinions and law review articles that could kindle a scorched-earth confirmation fight for the Supreme Court.

As a 50-year-old white male, Roberts doesn’t meet the hopes of first lady Laura Bush, who had said she would like President Bush to appoint a woman to replace retiring Justice Sandra Day O’Connor. O’Connor was the first woman named to the Supreme Court in its 215-year-history and the justice at the center of a closely divided court.

Nor does a Roberts appointment fulfill Bush’s expressed hope to name the first Hispanic to the high court, a plan that ran afoul of conservative opposition to longtime Bush adviser and U.S. Attorney General Alberto Gonzales, on the grounds that he wasn’t sufficiently opposed to abortion and affirmative action.

However, Roberts does give Bush the chance to place a well-known conservative on the Supreme Court in hopes of making history. With Roberts, Bush stands to carry out his 2000 campaign pledge to appoint someone to the Supreme Court who would make a strong conservative imprint on the court similar to the legal marks made by Justices Antonin Scalia and Clarence Thomas.

Bush characterized Roberts as a “strict constructionist” who would “interpret the Constitution, not legislate from the bench.”

The two men met last Friday at the White House, one of five potential Supreme Court candidates the president met face to face. Bush wanted to meet the contenders in a “relaxed and comfortable environment” to get to know his Supreme Court nominee “personally and professionally.” The two men toured the White House residence, apparently with first dogs Barney and Miss Beazley under foot.

Bush made his decision Monday night but waited until after a White House lunch Tuesday with Australian Prime Minister John Howard to excuse himself to call Roberts with the job offer. Upon returning to the lunch table, Bush announced with a flourish that “I just offered the job to a great, smart 50-year-old lawyer who agreed to serve.”

Roberts is well known inside the administration, in U.S. legal circles and at the high court as a top lawyer in the administrations of Presidents Ronald Reagan and the senior Bush.

The current President Bush finally succeeded in winning Senate approval of Roberts in 2003 to the U.S. Court of Appeals for the District of Columbia, often called the second highest court in the land and the former home of Supreme Court Justices Scalia, Thomas and Ruth Bader Ginsburg. Roberts was tapped for the same court by the senior President Bush only to see his appointment die when the elder Bush lost re-election in 1992.

Irrespective of ideology or philosophy, Roberts has long been regarded as a leading Supreme Court contender. For that reason alone, Roberts’ nomination to the D.C. appeals court was blocked in 1992 and again in 2001.

In the interim Roberts returned to private practice at the Washington law firm of Hogan & Hartson, boosting the number of cases he personally argued before the Supreme Court to 39. They cover the range of cases, including admiralty, antitrust, arbitration, environmental law, First Amendment, health care law, Indian law, bankruptcy, tax, regulation of financial institutions, administrative law, labor law, federal jurisdiction and procedure, interstate commerce, civil rights and criminal law.

Roberts is a native of Buffalo, N.Y., who grew up in Long Beach, Ind., where his father, an electrical engineer, worked in the nearby Gary steel mills. Roberts himself worked in the mills during the summer as an electrician’s assistant and captained his high school football team.

He went on to graduate from Harvard College and Harvard Law School, where he served as managing editor of the law review. Roberts and his wife, Jane, have two children, John and Josephine, and live in suburban Washington.

Roberts worked as a law clerk for Judge Henry Friendly of the 2nd U.S. Circuit Court of Appeals in New York and then-Associate Supreme Court Justice William Rehnquist before becoming associate White House counsel during Reagan’s presidency and chief deputy solicitor general in the senior Bush’s administration.

In the latter post, he helped author the administration brief in Planned Parenthood of Pennsylvania v. Casey, the 1992 Supreme Court case in which the first Bush administration contended that Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide as a private decision between a woman and her doctor, “was wrongly decided and should be overruled.”

The Supreme Court, ruling 5-4, used Casey to declare Roe v. Wade settled precedent. Justices O’Connor, Anthony Kennedy and David Souter _ all Republican appointees _ wrote the opinion upholding Roe as settled precedent.

Asked during his 2003 Senate confirmation hearing about whether he would carry his advocacy for the solicitor general’s office on abortion issues over to the appeals court bench, Roberts replied: “Roe v. Wade is the settled law of the land. . . . There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”

But as a Supreme Court justice, he would be free to overturn precedent on abortion, and activists in both camps consider him an unknown for that reason.

Interest groups across the spectrum have readied war rooms for the biggest confirmation fight since 1991’s Senate donnybrook over Supreme Court nominee Thomas, who was accused of sexual harassment by Anita Hill.

Advocates on the right and the left have pledged to raise $50 million or more for a Supreme Court fight, and are promising match each other dollar for dollar.

The conservative Progress for America alone has pledged to raise at least $18 million to support a Bush choice, and its president, Brian McCabe, said Tuesday night that, “John Roberts deserves genuine consideration, not instant attacks.”

David Leitch, a former White House deputy counsel who worked with Roberts at Justice and Hogan & Hartson, said that, “far from being an ideologue, John Roberts is precisely the kind of quality person and lawyer Americans should expect to be on our highest court.”

Liberal group have questioned Roberts’ Justice Department record over briefs he helped write urging prayers at public school graduation and limiting doctor’s speech in telling patients that abortion is a legal option.

Abortion-rights activists also complain about a brief Roberts helped write that said the Supreme Court’s “conclusion in Roe that there is a fundamental right to an abortion . . . finds no support in the text, structure or history of the Constitution,” the brief said.

NARAL Pro-Choice America president Nancy Keenan immediately called Bush’s choice of Roberts “unsuitable.”

Wade Henderson heads the umbrella Leadership Conference for Civil Rights Under Law that led the successful fight against Reagan Supreme Court nominee Robert Bork in 1987 in an all-out campaign conservatives long to avenge.

Henderson issued a statement Tuesday asking if Roberts is “a hard-nosed extremist with a soft conservative facade. In short, the President may have nominated a stealth candidate _ a Justice Scalia or Thomas in O’Connor’s robes.”

In conservative circles, the cry has been: “No More Souters,” after the first President Bush’s 1990 choice of Souter for the Supreme Court. Souter was an appellate court short-timer whose less than conservative leanings flew under the legal radar screen, and his Supreme Court performance in the 15 years since has led conservatives to question whether longtime Bush aide Gonzales, with his legal murky record, was Spanish for “Souter.”

But unlike Souter, those who know Roberts well vouch for his conservative credentials, leadership qualities, intelligence and people skills that could well continue the Rehnquist court’s rightward course.

Another potential plus is that Roberts lacks a paper trail of controversial court opinions and law review articles _ two qualities that could ease Senate confirmation.

But his short tenure on the court has seen him side with the current Bush administration in last week’s decision upholding the military tribunals it set up to try terrorism suspects for war crimes. That ruling that also held that the Geneva Convention on prisoners of war gives detainees no right to enforce that treaty’s provisions in court.

In other cases, Roberts also voted to bar U.S. prisoners of war in the Persian Gulf War from suing the new U.S.-backed Iraqi government for damages suffered under Saddam Hussein’s government and to keep secret the records of Vice President Dick Cheney’s energy task force, a position the Supreme Court subsequently upheld.

Roberts also wrote the unanimous appeals court decision rejecting Fourth Amendment unlawful seizure and Equal Protection challenges to the arrest and detention of a 12-year old girl for eating french fries on Washington’s Metro subway. The case received media attention because of its extreme facts, but as Roberts noted in the first line of his opinion, “No one is very happy about the events that led to this litigation.”

Roberts is hardly a predictable conservative, however: He sided with a Metro employee with bipolar disorder who claimed the transit agency violated the federal Americans with Disabilities Act and sided with a criminal defendant’s challenge to his sentence on fraud charges.

Scripps Howard reporter Bill Straub contributed to this report.