Dallas Morning News - President Bush's Choice for Nominee Sets Up Confirmation Battle

July 20, 2005
By David Jackson

(Washington) - By tapping John Roberts Jr. for the Supreme Court, Bush chose a paragon of the conservative legal establishment, and a white man rather than a woman or a minority _ setting the stage for a Senate confirmation battle that will be tough but still winnable.

"I can't imagine what anybody is going to be able to use against him," said constitutional scholar Marci Hamilton, author of "God vs. the Gavel: Religion and the Rule of Law."

Still, liberal groups said that in replacing Justice Sandra Day O'Connor, often a swing vote in close cases, Roberts would probably shift the court's positions on abortion, separation of church and state, and government regulation of business and the environment.

"Judge Roberts has the support of not only mainstream conservatives, but the radical right as well," said Nan Aron, president of the Alliance for Justice, an organization that led the fight to defeat Supreme Court nominee Robert Bork in 1987.

Indeed, a more conservative court is the stated goal of many of Bush's political supporters.

Since O'Connor announced her retirement July 1, Republican groups lobbied heavily for Bush to nominate a conservative jurist _ and they also fought against other types of nominees.

Some analysts had said Bush might try to expand the Republican Party's reach by nominating the court's first Hispanic, specifically Attorney General Alberto Gonzales. Some conservative activists called Gonzales insufficiently opposed to abortion and affirmative action.

Others said Bush might go with a female nominee, if only out of concern that a "gender gap" might hurt GOP candidates.

Roberts, a member of the U.S. Court of Appeals for Washington, D.C., is considered more of a business-oriented conservative than a religious one. One of his best-known writings on the appeals court, in dissent, challenged the government's ability to restrict development under the Endangered Species Act.

Religious conservatives, interested more in such issues as abortion and gay marriage, also hailed Roberts' nomination.

The American Center for Law and Justice, founded by evangelist Pat Robertson, called Roberts "an exceptional choice."

Some surprise revelation could still derail Roberts' candidacy, though administration officials and outside analysts called that unlikely.

Roberts has been thoroughly vetted, having been on the administration's radar screen since Bush took office in 2001. That year, Bush nominated Roberts to the appeals court, and the Senate confirmed him two years later.

Senate Democrats served notice, however, that confirmation for a lifetime appointment on the Supreme Court requires much different criteria.

"It's a new ballgame, and as long as he answers the questions fully and openly and gives us the documents that we request, we can be able to explore his (judicial) view," said Sen. Charles Schumer, D-N.Y., a member of the Senate Judiciary Committee.

Sen. Patrick Leahy of Vermont, the Judiciary Committee's top Democrat, said, "No one is entitled to a free pass to a lifetime appointment to the Supreme Court."

Serving only two years on the appeals court leaves little of a paper trail for opponents to pick at, analysts said.

Critics are expected to focus on Judge Roberts' work as a Justice Department lawyer for Presidents Ronald Reagan and George Bush. In legal filings, he argued a number of positions in the conservative vanguard: Anti-abortion, anti-regulation, lower barriers between church and state, a preference for states' rights over congressional power.

As deputy solicitor general for the first President Bush in 1991, Roberts asked the court to overturn Roe vs. Wade, the 1973 abortion rights ruling.

The court refused by a majority that included O'Connor.

While some critics called Roberts' judicial record a question mark, he is well known within the Washington community. Friendly and affable, he knows many of the senators who will be reviewing his nomination.

In going with Roberts, Bush passed on a number of potential candidates from Texas, including Gonzales and three members of the 5th U.S. Circuit Court of Appeals: Priscilla Owen of Austin, Edith Jones of Houston and Emilio Garza of San Antonio. Conservative groups also promoted Michael Luttig, a Virginia-based appeals judge.

Roberts is probably a good bet for confirmation, if only because Republicans control 55 of the 100 Senate seats.

Democrats could choose to filibuster the nomination, requiring 60 votes to override. Analysts called such a move politically risky, as Republicans are sure to cast the Democrats as angry obstructionists.

Barring a filibuster, Democrats would have to peel away moderate Republicans, such as Olympia Snowe and Susan Collins of Maine.

All senators will be getting loads of advice from interest groups that orchestrated an e-mail avalanche as Roberts' nomination became public. Messages went to the media as well as supporters from across the country, urging them to lobby the Senate for and against the nominee.

Nancy Keenan, the president of NARAL Pro-Choice America, said, "President Bush has consciously chosen the path of confrontation."

Jan LaRue, chief counsel for the anti-abortion Concerned Women for America, called Roberts "a man who respects the Constitution and the limited role of judges."