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ROBERTS A LIKELY CAKEWALK: COMING STORM OVER SUPREME COURT NOMINEES

Following a week of intense grilling, we still know little about this "Teflon" candidate for the highest court in the land...

Web Posted: September 19, 2005

He smiled graciously for the cameras, danced around pointed questions, adroitly circumvented any effort to pin down how he might rule on specific legal cases -- and he will likely be confirmed to the Supreme Court of the United States.

   John Roberts survived the equivalent of "Hell Week" on Capitol Hill that included three days of aggressive questioning (mostly by Democrats) plus critical input from interest groups representing a slew of issues. The "Teflon" veneer survived, and Roberts according to the pundits and media prognosticators will likely be confirmed. The votes to stop the man George W. Bush picked to preside over the highest court in the country are simply not there.

   The prevailing view inside the legal community has always been that Roberts was incredibly qualified for this or any other judicial post. Take that, and add testimony before the Senate Judiciary Committee and you have what Legal Times correspondent Tony Mauro described as "a high court litigator at the top of his game: pragmatic and non-ideological, cool to the point of being bloodless."

monthly special    "By the end of the week," added Mauro in the forthcoming edition of the respected insider legal journal, "it seemed possible to sketch the outlines of a John Roberts chief justiceship as one informed by lawyerly values: respectful of tradition but interested in resolving cases practically and efficiently, without too much reference to causes or ideology."

   It sounds so neat and tidy. Even New York Democrat Chuck Schumer, who hammered Roberts during last week's round of testimony, told the nominee, "You seem to be a lawyer above all," and perfunctorily added that attorneys "tend not to be ideologues."

   By implication, the courts -- especially so grand an institution as SCOTUS -- are somehow sanitized of ideological biases, focusing with an almost empirical, scientific scrutiny on the analysis of cases and the cool, objective application of precedent, that golden standard called Stare Decisis, "That which has been decided."

   But that may be so much flotsam for popular consumption. After all, how many critical cases have been decided by one or even two votes? Does it really make sense to believe that George W. Bush chose Roberts for his gloss of cool objectivity and detachment? Why are so many of those on the Religious Right throwing their energy behind greasing the Roberts nomination in Congress? Is it because he is a "lawyer" and the fact that lawyers "tend not to be ideologues"?

   What about Roberts as an "originalist," the legal and media buzz-phrase for someone whose legal judgment is anchored in that elusive standard of "original intent" of the Founders who drafted the Constitution?

   Without declaring exactly where he would possibly stray from this legal landmark, he uttered only "I depart from some views of the original intent movement."

   It is difficult to believe that no one, except possibly for John Roberts, knows how a Chief Justice Roberts might rule on, say, prayer in public schools, or a woman's right to choose, or other deeply divisive culture war issues. Rubbish. George W. Bush knows, along with Karl Rove, and the representatives of the Religious Right who seem to have discovered a revolving door at 1600 Pennsylvania Avenue. So strident a propagandist and advocate as Jay Sekulow, head of the American Center for Law and Justice, would not be supporting Roberts if he wasn't convinced that the nominee was ideologically reliable when measured against the theopolitical litmus test of men like Pat Robertson and Jerry Falwell.

   Robertson would not be promoting this nomination if Roberts was simply an exceptional attorney and graduate of the esteemed Harvard Law School. That kind of hired help is found easily inside and outside the D.C. beltway. The 25,000 members of the Federalist Society are only part of a vast pool the Bush administration can draw on in its mission to remake the Supreme Court and purge the federal judiciary of those pesky "activist judges," replacing this entire branch of government with "originalists" of a more reliable ideological coloration. Roberts was on the Federal Society roster -- doesn't that say something about his legal outlook and goals for the American legal and social system? Scroll down the membership list and you will find other names, like Kenneth Starr; former Attorney General Edwin Meese; and of course legal eagles with the most powerful, entrenched firms in the country like Sullivan & Cromwell, and Gibson, Dunn & Crutcher whose Washington, DC office was home to Theodore Olson, former Solicitor General.

   No friends of the "Lemon Test" or the First Amendment separation of church and state here! And let's be sure to include two sitting SCOTUS Justices, Antonin Scalia and Clarence Thomas.

   Would it be wrong to theorize the possibility that Roberts was chosen not just for his sterling legal credentials but almost as a character from Central Casting? Here was a man so versed in the art of interrogation and formal Rhetoric that he danced around the toughest questions hurled his way by some of the savviest politicians on Capitol Hill. And short of a political miracle, he will be our next Supreme Court Chief Justice.


   All of which raises the likelihood that the real fight over the nation's federal bench is just beginning. Bush has a second nominee to put forth, and there is the disturbing possibility that even with his ratings at an all-time low, this sitting President could replace even three or four justices. Roberts, of course, may turn out to be a moderate, more of a "lawyer" than even the White House vetting committee which chooses these nominees considered. More extreme candidates like Pricilla Owen, or even former Alabama Chief Justice Roy Moore (yes, his name too is reportedly on the long list...) may be waiting in the wings. Death and mayhem are not taking a holiday in Washington, DC; and we have always had the fear that even with the Rehnquist-era court, we were "one broken hip away" from having the Bush administration tip that precarious 5-4 voting split.

   That has already happened.

   The worst may be yet to come.




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