The Pick Is In
In a surprise primetime announcement, President Bush named U.S. Appellate Court Judge John G. Roberts Jr. to succeed retiring Justice Sandra Day O'Connor on the Supreme Court, setting into motion the first Court nomination fight in 11 years.
As Roberts' nomination now heads to Capitol Hill, interest groups are expected to spend millions of dollars to influence senators and the public on the upcoming vote. That could make meeting Bush's deadline of seating the new justice by Oct. 3, when the court's next term begins, difficult.
Bush's announcement capped a day of uncertainty in Washington as rumors of potential nominees flew through the nation's capital. In his announcement, Bush called choosing a justice "one of the most consequential decisions a president makes," and praised Roberts as "one of the best legal minds of his generation." He noted that Roberts is "widely admired for his intellect, his sound judgment and his personal decency."
Roberts, who has served on the U.S. Court of Appeals for the District of Columbia Circuit since 2003 and argued 39 cases before the Supreme Court, would be its youngest member at age 50. The Harvard Law School graduate clerked for Chief Justice William Rehnquist in 1980-'81 and has held positions in the Reagan and first Bush administrations.
Republican senators greeted Roberts' nomination enthusiastically. Senate Majority Leader Bill Frist (R-Tenn.) said in a statement that Roberts "is the kind of outstanding nominee that will make America proud." Sen. John Cornyn (R-Texas), a member of the Judiciary Committee who was considered a possible nominee himself, said Roberts is "an exceptional judge, brilliant legal mind and a man of outstanding character."
Democratic senators reacted more cautiously and promised a thorough confirmation process. Noting that a current nominee could serve until 2030 or later, Senate Judiciary Committee Ranking Member Patrick Leahy (D-Vt.) said, "No one is entitled to a free pass to a lifetime appointment to the Supreme Court."
Senate Judiciary Committee member Chuck Schumer (D-N.Y.), who voted against Roberts in 2003, said many of Roberts' personal views on issues are unknown. Assistant Senate Democratic Leader Dick Durbin (D-Ill.) was more forceful, saying in a statement that by choosing Roberts rather than a nominee in the mold of O'Connor, Bush has "guaranteed a more controversial confirmation process."
While senators are expected to press Roberts for his views on issues such as abortion, gay marriage and affirmative action, Roberts is considered unlikely to cause the "Gang of 14" bipartisan senators to invoke the "extraordinary circumstances" part of their agreement that would allow them to filibuster Bush's judicial nominees. In replacing O'Connor, Roberts would succeed the justice who has voted with the 5-4 majority in more rulings since 1994 than any other member of the Court.
Elliot Mincberg, vice president and legal director for People for the American Way, said his group was disappointed with Bush's selection but added that it doesn't have a firm position on Roberts, given his short record as a judge. However, Mincberg called several of Roberts' positions as a judge and as the principal deputy solicitor general in the first Bush administration -- including his views on Roe v. Wade and the Endangered Species Act -- troubling. Roberts said in 2003 that he considers Roe "the settled law of the land" and was merely arguing for his client when he said in 1990 that Roe should be overturned.
"The next nominee could affect Americans' rights and liberties for the next 20, 30, 40 years," Mincberg said. "His judicial philosophy is absolutely critical."
In choosing Roberts, considered by experts a "legacy" nominee, Bush said he was looking for someone "who will not legislate from the bench." He rejected suggestions from several senators that he select someone with political rather than judicial experience, saying Monday, "I, of course, am the person that picks the nominee, and they get to decide whether or not the nominee gets confirmed." Bush also ignored advice offered by First Lady Laura Bush last week to choose a woman to succeed the nation's first female Supreme Court justice, and he decided against making history by naming the first Hispanic justice.
While the White House originally expected to nominate a successor to Rehnquist, who is battling thyroid cancer, rather than O'Connor, Bush moved speedily to name Roberts; in part to shift the summertime conversation in Washington from questions about which members of his administration outed undercover CIA agent Valerie Plame to reporters.
"A nomination would certainly change the momentum in Washington," former Reagan White House aide Ken Duberstein told The New York Times Tuesday.
Last week, Rehnquist said that he would "continue to perform my duties as chief justice as long as my health permits."
Preparations for the nomination have been going on since O'Connor announced her retirement on July 1. Committee Chairman Arlen Specter (R-Pa.), Leahy and their staffs have been meeting to discuss hearing logistics, and both senators talked with Bush at the White House last week, along with Frist and Minority Leader Harry Reid (D-Nev.). Bush said Tuesday that he and members of his staff have consulted more than 70 senators about the nomination process, something which Republican Senate leaders termed unprecedented.
Roberts is expected to meet with senators before the Senate begins its month-long August recess. Senators and committee staffers will spend the month examining his writings and statements, while the Federal Bureau of Investigation and the American Bar Association conduct background checks.
Specter told Fox News anchor Brit Hume on Sunday that while late August hearings are possible, he would prefer to hold hearings after the Senate returns from its recess on Sept. 6. Bush has stressed that he wants a dignified and timely confirmation process.
It's questionable whether Bush can push a nominee through the Senate before October, however. Leahy emphasized the need to vet Roberts' nomination "thoroughly and carefully" and for senators to "take seriously our constitutional obligations" -- all of which could take time. O'Connor has said she is willing to stay until her replacement is confirmed. Bush has tapped former Tennessee Republican Sen. Fred Thompson, now an actor on NBC's "Law & Order," to guide Roberts through the Senate process.
The Senate confirmed the last Supreme Court nominee, Stephen Breyer, after 73 days in 1994 by an 87-9 vote, and took 42 days to approve Ruth Bader Ginsburg in 1993 by a 96-3 vote. But the Senate spent more than three months to confirm Clarence Thomas in 1991 by a vote of 52-48.
In a speech before the Center for American Progress and the American Constitution Society on July 14, Schumer offered some clues about his questioning of Bush's nominee. He said he would ask about the nominee's judicial philosophy, circumstances in which the Court should invalidate a law passed by Congress and under what circumstances the Court should overturn a well-established precedent.
Interest groups on both sides of the aisle were active even before O'Connor's announcement. Progress for America -- a conservative group that has pressed for the Senate to approve Bush's judicial choices and has launched the website upordownvote.com-- has pledged to spend at least $18 million on the Supreme Court fight. And in a sign of how intense the upcoming battle is likely to be, it launched a new website, judgeroberts.com, within minutes of Bush's announcement.
Progress for America President Brian McCabe vowed to defend Roberts "from the left's predictable and premeditated character assassination attempts."
Between June 22 and July 1, Progress for America paid $700,000 to run ads on Washington cable news networks and a local all-news radio station, as well as nationally on CNN and Fox News Channel. The group also spent $3.6 million in more than 15 states to push the nominations of appellate court judges Priscilla Owen and Janice Rogers Brown through the Senate earlier this year.
On the other side, savethecourt.org, a website of People for the American Way, posted a 10-page review of Roberts' record shortly after Bush's announcement. Earlier this month, the group released a television spot that asked whether Bush would try "to force through a judge who threatens our basic rights as Americans." Mincberg didn't name a pricetag for the group's upcoming efforts.
In carrying out the Senate's "advice and consent" role, Arlen Specter is likely to come under pressure from the White House to move Roberts' nomination quickly. Days after Specter said last fall that a Supreme Court nominee who opposes Roe v. Wade would probably not win Senate confirmation, he said he would not use the landmark decision as a litmus test.
But G. Terry Madonna, a public affairs professor at Franklin and Marshall College in Lancaster, Pa., said that the 75-year-old Specter is "about as independent as he's probably ever been in his career." Given Specter's age and health -- he is battling Hodgkin's disease -- Specter is not likely to run for another term, allowing him more freedom.