A Supreme Bank Shot

During his often mind-numbing confirmation hearings, a polished John Roberts delivered a virtual seminar on constitutional law while managing to skirt most of his own views. Senate Democrats had expected him to stonewall, but Roberts did reveal a few unexpected clues last week. He does, he said, think there is a right to privacy in the Constitution. And he allowed that some of the founding document's wording could be open to modern interpretation. Even to many liberal ears, that didn't sound exactly like a justice in the mold of originalists Antonin Scalia and Clarence Thomas. Roberts himself seemed to make that case when he declared, "I am not an ideologue."

While Democrats openly wished for a better glimpse of the man who would wear the black robe, Roberts's affability and intellect left them in a quandary. Even a reliable partisan like Sen. Charles Schumer deemed Roberts "the most brilliant person who ever came before us." At least half of the eight committee Democrats claimed to be undecided by late last week. Still, with 55 Republicans in the Senate, Roberts's confirmation is all but assured. What will count most about the Democrats' votes: the message they send. With President George W. Bush set to name another justice to replace Sandra Day O'Connor--a pick more likely to shift the balance on the court--the political calculus is complicated. "This nomination is about setting the table for the next one," says Nan Aron of the liberal Alliance for Justice. If Democrats vote for Roberts, will they have more credibility to vote down the next pick? If they oppose him, will they send a message to the White House that anyone to the right of Roberts would be unacceptable? Or would Bush argue that he might as well appoint an archconservative next time, since the Dems won't back anyone he chooses?

Some Democrats--especially those from Red States--could find reasons to back Roberts. Despite a lack of strong managerial experience and just two years on the bench, Roberts displayed confidence about leading the court as a newcomer. He promised he would never use his power as chief to assign opinions for political reasons and suggested he would stay engaged with the world outside the court.

Still, giving Roberts a "yea" may still be hard for some liberals. Some of his answers weren't all that different from ones offered by Clarence Thomas at his own hearings. Liberal interest groups--many with ties to big campaign donors--met privately with Democratic Senate leader Harry Reid on Thursday to press their case. And then there is the stealth factor: Dems fear that confirming Roberts could set a new precedent for evasiveness.

Republicans are jockeying over the next pick, too. Some conservatives plan to press for a nominee with a clear originalist paper trail. Bush is also under pressure to choose a woman or a minority. Last week, the buzz around Attorney General Alberto Gonzales waned while Washington lawyer Miguel Es-trada gained ground, according to one source close to the White House who did not wish to be quoted discussing the deliberations. Texan Priscilla Owen--a longtime Bush friend recently confirmed to an appeals court under a bipartisan Senate deal--is also considered a favorite.

This week Bush has arranged a breakfast meeting with Senate leaders to discuss the next vacancy. He could announce a new justice as soon as Roberts's confirmation goes to the floor later this month. "Judges are not politicians," Roberts told senators last week. Maybe not, but there's nothing more political than getting onto the high court.

A Supreme Bank Shot | News