Bush's Choice

The choice was contentious even before it was official. The name of John G. Roberts--President George W. Bush's pick to replace retiring Supreme Court Justice Sandra Day O'Connor--leaked to the press about an hour before the judge appeared at Bush's side in the East Room of the White House last night. And it wasn't long before dueling e-mails from interest groups began outlining the confirmation battle to come. In their "preax"--reactions in advance--conservatives hailed Roberts as an excellent candidate. "He is brilliant, thoughtful and faithful to the law," former Bush deputy assistant attorney general Shannen Coffin said in an e-mail sent more than an hour before the announcement. Meanwhile, liberals expressed their early concerns. Alliance for Justice President Nan Aron said her coalition could not support Roberts's nomination because too little was known about the appeals court judge. "While we will be conducting a complete analysis of his record on and off the bench, an initial review has led to serious concerns about whether he will be fair, independent and will protect the rights and freedoms of all Americans," Aron e-mailed 35 minutes before Bush and Roberts took their places before the cameras.

The official announcement hardly cooled the rhetoric, and within hours both sides had released detailed dissections of Roberts' legal record. "Judge Roberts is an exceptional choice who will bring sound legal reasoning to the Supreme Court of the United States," said Jay Sekulow, chief counsel of the conservative American Center for Law and Justice. "In naming John Roberts, the president hit it out of the ballpark," agreed Manuel Miranda, who heads the Third Branch Conference, a coalition of conservative groups allied to support Bush's pick. On the other side, MoveOn.org Political Action's executive director Eli Pariser, called Roberts a "right-wing corporate lawyer and ideologue" and said he was "associated with some of the most fringe and extreme views of the Republican Party." And People for the American Way president Ralph Neas said that "John Roberts's record raises serious concerns as well as questions about where he stands on crucial legal and constitutional issues."

It has been 11 years since the last vacancy on the Supreme Court, and interest groups on both sides have spent the down time girding for battle. Now they're poised to devote millions of dollars to a presidential-campaign-style effort to shape the future of the Supreme Court. Last night MoveOn.org announced a national campaign to stop Roberts, starting with a petition drive this week. The conservative group Progress for America has already pledged to spend $18 million backing Bush's nominee.

This battle is somewhat different than what the two sides had thought they'd be fighting this summer. It was ailing Chief Justice William Rehnquist who was expected to retire at the end of the court's term last month. Instead, swing voter O'Connor hung up her robes. Now, because O'Connor's replacement has the potential to swing the court in either direction, the stakes of the confirmation battle are higher than ever. Roberts's name had been circulating as a replacement for Rehnquist earlier this spring. But when O'Connor left, the short list of candidates seemed to shift. Suddenly, Attorney General Alberto Gonzales--who could have been the court's first Latino--rose to the top of the list. A number of women also generated buzz. First Lady Laura Bush said she thought her husband should choose a woman to replace O'Connor. And all day Tuesday rumors that Bush would pick appeals court judge Edith Brown Clement--a woman with a scant judicial record to comb through--rippled through Washington.

Some conservatives had encouraged the White House to wait until later in the summer to announce a court pick. They worried that revealing a name in July and holding confirmation hearings after the Senate's August recess would leave their nominee vulnerable to liberal attacks for weeks. At first it seemed as if the White House might heed that advice. Conservatives working with the White House had expected the announcement to come next week at the earliest. But then there was word from Rehnquist that he plans to stay on the court as long as his "health permits." That meant there was no point in waiting to unveil two choices at once. And by early this week, the White House seemed eager to shift news coverage away from whether Bush advisor Karl Rove had committed a crime in the case involving the leak of a CIA agent's name.

Roberts, 50, was born in Buffalo, N.Y., and grew up in Indiana, where his father worked at Bethlehem Steel. He made it through Harvard in three years, then went on to Harvard Law. He later clerked for Associate Justice William Rehnquist. After that, the young Roberts seemed hooked on Washington. He worked in the Reagan Justice Department and White House counsel's office. Roberts practiced appellate law at the Washington firm of Hogan & Hartson. He also served as principal deputy solicitor general under President George H.W. Bush. He has argued 39 cases before the Supreme Court and had a reputation for extensive preparation. Nonetheless, he said last night, he always got a "lump in his throat" when he approached the high court's imposing marble steps.

Known as an intellectual and a reliable conservative, Roberts was first nominated to the federal bench by the first President Bush, but was never confirmed. George W. Bush nominated him again in 2003, when he was approved by the Senate for a seat on the D.C. Circuit. Though his record on the bench is still relatively thin, Roberts authored plenty of memos and legal briefs during his time in GOP administrations. That's what both opponents and supporters will mine for ammunition in the coming weeks.

One certain area of controversy: abortion rights. There are still five votes to uphold Roe v. Wade even without O'Connor on the court--Justice Anthony Kennedy and four liberal justices have supported it. But Kennedy has been willing to impose more restrictions on abortion. If Roberts follows suit, procedures like so-called partial-birth abortion could be banned and measures like parental notification tightened. In a footnote to a 1990 government brief, Roberts once argued that Roe should be overturned. But during his 2003 confirmation hearings, he said it was "settled law."

Abortion-rights supporters are not reassured. NARAL Pro-Choice America president Nancy Keenan told reporters on a conference call last night that Roberts was "an unsuitable choice" for the court, citing a case in which Roberts had the government intervene on behalf of the anti-abortion group Operation Rescue. Pro-life groups, on the other hand, were cautiously optimistic. They are wary of stealth candidates too--for years, their motto has been "no more Souters," referring to Justice David Souter, appointed by the senior President Bush, who often sides with liberals on the bench. "Everything we know about Judge Roberts tells us that he fulfills the president's promise to nominate a judge who will strictly interpret the Constitution and not legislate from the bench," Jan LaRue, chief counsel for the pro-life group Concerned Women for America, said in an e-mail. "That's why the president nominated him to the D.C. Circuit. He clerked for Rehnquist, which says a lot."

Bush tried to play to both sides in his brief comments Tuesday evening. He told conservatives that Roberts would "strictly apply" the Constitution and not "legislate from the bench"--all code words for the notion that Roberts was no liberal "activist" judge. But he also touted bipartisan support for Roberts in past--perhaps a hint to pro--choicers that he is no pro-life crusader.

In the end, it's the Senate that will have the final say. There were some early signs that Democrats may not unite in opposing Roberts--a scenario that would make it all but impossible for them to stop his nomination with a filibuster. Republicans pointed out that moderate Sen. Joe Lieberman has been quoted calling Roberts "in the ballpark." Sen. Majority Leader Harry Reid's office released a statement saying Roberts has "suitable legal credentials" but added that further inquiry was needed. That inquiry could begin immediately; Roberts is expected to begin meeting key senators on Wednesdsay. Whatever opposition he faces, the low-key and affable Roberts isn't likely to rub lawmakers the wrong way, as did ill-fated nominee Robert Bork. Sen. Chuck Schumer told reporters last night that Roberts wasn't the kind of candidate Democrats would automatically support, but he wasn't someone they'd automatically oppose either. And that may be just what Bush is hoping for.

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