President Bush defied pundits on Tuesday, July 19, announcing Appellate Court Judge John Roberts as his pick to replace Justice Sandra Day O'Connor on the U.S. Supreme Court. The announcement came at 9 p.m., after analysts predicted Edith Clement, an uncontroversial appellate court judge, had the nomination in the bag.
"I want to congratulate the president for confusing the rest of Washington," said former Louisiana Senator John Breaux. Breaux admitted to Fox News that he had come on the air prepared to talk about Clement, not Roberts.
Senate Democrats warned that by choosing Roberts over a more moderate nominee like Clement, the president had fired the first shot in what is likely to be a bloody battle. "The president had an opportunity to unite the country," said Sen. Dick Durbin (D-IL). "Instead...President Bush has chosen a more controversial nominee and guaranteed a more controversial confirmation process."
Roberts, who was appointed to the U.S. Court of Appeals for the District of Columbia in 2003, is no stranger to the confirmation process. He made it out of the Senate Judiciary panel by a vote of 16-3. While Sen. Chuck Schumer (D-NY) voted against Roberts, Sen. Durbin voted to confirm.
"The decisions of the Supreme Court affect the life of every American," said President Bush as he announced the nomination. "And so a nominee to that court must be a person of superb credentials and the highest integrity, a person who will faithfully apply the Constitution and keep our founding promise of equal Justice under the law. I have found such a person in Judge John Roberts."
Roberts' qualifications have been praised by both liberals and conservatives alike. He has argued 39 cases before the Supreme Court, winning 25 of them. He has been called one of the best litigators in a generation, and 153 lawyers in the D.C. area supported Roberts' nomination to the D.C. Circuit Court.
Yet the opposition to the Roberts nomination is already in full swing, attacks began 12 minutes after the announcement. People for the American Way called the nomination "a constitutional catastrophe," while the National Organization for Women (NOW) said that since Bush chose to pick a fight, "we intend to give him one." Regarding whether the Roberts' nominee constituted an "extreme circumstance" warranting a filibuster, Sen. Barbra Boxer (D-CA) told Fox News, "The fact that [Justice] O'Connor stepped down creates an extraordinary circumstance."
Senate Republicans and conservative organizations such as RightMarch.com are also preparing for battle. Sen. John Cornyn (R-TX) congratulated the president on making the right decision, saying "I strongly support his nomination."
Roberts' qualifications are not likely to be the key issue in the Senate debates. Rather, Roberts' willingness to answer the list of questions put forth last week by the Senate Judiciary Commission will probably be central to the debates. Additionally, the actual role of the Senate in the nomination process is likely to come under scrutiny.
The constitution confers on the Senate the power to "advise and consent" on all executive nominees. Historically, the professional qualifications of the nominee were considered paramount. Now, however, Senate Democrats are demanding that Roberts answer a long list of questions regarding his own personal beliefs, questions such as which Supreme Court cases he feels were wrongly decided and why. Nominees have been asked such questions in the past, and many have refused to answer them, including Justice Ruth Bader Ginsberg, a Clinton nominee confirmed by a margin of 97-3.
In the Democrats' response following Bush's announcement, Vermont Senator Pat Leahy called Sandra Day O'Connor a "model justice" who "didn't prejudge cases." It is noteworthy that past nominees when asked how they might rule in particular cases have refused to answer on the grounds that it might prejudice their decisions in the future. Justices should not be bound to hypothetical answers to "what-if" questions; they should consider the facts of real cases and rule on those facts. This argument has been made in before the Senate Judiciary Committee many times by nominees of both Republican and Democratic presidents.
Sen. Schumer said of Roberts, "His views will affect a generation of Americans, and it is his obligation during the nomination process to let the American people know those views." But how can he do this and remain unbiased if he is indeed confirmed? Schumer went on to say that the "burden is on the nominee...to prove that he is worthy, not on the Senate to prove that he is unworthy." There is, however, no constitutional basis for this claim. And Schumer did not set any parameters regarding what kind of answers would indicate that Roberts is "unworthy."
So far, there have been no allegations that Roberts is not qualified to sit on the bench. Historically, lack of professional qualifications has been the only legitimate reason for the Senate not to confirm a nominee. Democrats like to say that the Senate should not be a "rubber stamp" for the president when it comes to nominees, and that is true, indeed. However, since our nation's founding there have been 145 nominees to the Supreme Court, of which only 29 have failed to be confirmed.
During his presidential campaign, Bush pointed to Justice Antonin Scalia as his model justice, promising that given the opportunity he would appoint someone of a similar ilk. Democrats have railed against that statement, warning Bush that they would fight against "another Scalia." But when Scalia was nominated in 1986, he was confirmed by a vote of 98-0. Not one senator voted against him. Even the most liberal senators such as Al Gore and Ted Kennedy voted to confirm.
So what sort of fight can we expect to see in the coming months? Will Senate Democrats filibuster? Will the Republicans "go nuclear?" A reporter asked Schumer after the announcement if the word "filibuster" had already crossed his mind. Schumer answered, "It's much too early to cross a bridge like that."
Roberts began lobbying for confirmation the morning after the announcement, and the pace of the debate is already picking up. By the time the Senate returns from its scheduled break in August, the battle lines will already be drawn. While many Americans will pay little attention, others will stay on the edge of their seats. If he is confirmed, Roberts, now 50, could potentially sit on the bench until 2030 or longer. Any president who gets to appoint a Supreme Court justice leaves a legacy. We are witnessing the Bush legacy unfold before our eyes.