Choose Your Battles Wisely

During this past week, the Senate Judiciary Committee questioned John Roberts, President Bush’s nominee for Chief Justice of the Supreme Court. In lengthy and intense sessions, Senators asked Roberts about a variety of topics, including civil rights and the right to privacy, which includes abortion. As noted by the media and by members of the Judiciary Committee, Roberts sidestepped many of these questions on the grounds that a nominee should not prejudge a case. While Roberts’ unwillingness to answer many of these questions is troubling, the Democrats on the committee and in the full Senate would be foolish not to confirm him. Three important factors should give Democrats pause before voting no. First, Roberts is undoubtedly well qualified. Second, his confirmation would not change the ideological makeup of the court, as Roberts would be replacing the staunch conservative, William Rehnquist. Finally, Democrats need to pick their battles. The replacement of the relatively moderate Sandra Day O’Connor will be more likely to cause a significant shift on the Court. Democrats should hold their fire for this more important fight. Without question, John Roberts has a brilliant legal mind. Roberts graduated summa cum laude from Harvard College and magna cum laude from Harvard Law School, where he served as the managing editor of the Harvard Law Review. After graduating, he served in the extremely coveted position of law clerk under Court of Appeals judge Henry Friendly. He then served as a law clerk under then-Associate Justice William Rehnquist. After serving with Rehnquist, Roberts worked in government and the private sector, becoming a Deputy Solicitor General. As Deputy Solicitor General, Roberts argued before the Supreme Court on behalf of the United States Government. Roberts has served as an Appellate Judge on the District of Columbia Circuit Court of Appeals over the past several years Roberts is exceptionally qualified for the Supreme Court, so much so that the New York Times recently questioned if standards Roberts established could be matched by subsequent nominees. Likewise, Republican Senator Orrin Hatch of Utah exclaimed during the Judiciary Committee hearings, “If the Democrats can’t vote for this Republican, then there is no one they can vote for.” Democrats should also consider how Roberts’ confirmation would change the court. Like the nation, the Supreme Court has been bitterly split. In a large number of cases, the Court voted 5 – 4, most frequently with Associate Justices Sandra Day O’Connor or Anthony Kennedy casting the deciding vote. By replacing Rehnquist, Roberts would not shift the court to the right. More important than Rehnquist’s replacement is that for Sandra Day O’Connor. Although generally very conservative, O’ Connor often cast the deciding vote. If a strict conservative like Roberts had been in her place, a number of decisions could have gone the other way. But since Roberts will be replacing Rehnquist, not O’Connor, his appointment will not significantsly alter the ideological makeup of the court. Bush’s nomination of Roberts also affects the nominations to follow. As previously mentioned, Sandra Day O’Connor’s spot on the Supreme Court remains open, and Bush will need to nominate a successor. Because of O’Connor’s crucial role in deciding major cases, this nomination will likely have a much greater effect on the overall direction of the court. Democrats should be prepared to offer major opposition on any potential nominee who is a conservative extremist. If the Democrats allow Roberts to be confirmed, they will have much greater credibility when Bush brings another candidate before the Senate. Hopefully, Senate Democrats will see that confirming John Roberts is their best option. While some of them might not like his conservatism, they all recognize his intelligence and realize that confirming Roberts is the only way they can possibly win the real battle: the next nomination.