by John M. Curtis
(310) 204-8700

Copyright July 19, 2005
All Rights Reserved.

nnouncing his pick to replace retiring Supreme Court Justice Sandra Day O'Connor, President George W. Bush outfoxed Senate Democrats picking 50-year-old District of Columbia Appellate Court Judge John G. Roberts. With only a two year track record on the D.C. Appellate Court, Roberts was the perfect choice because of a his squeaky-clean judicial record, free from incendiary rhetoric and opinion likely to cause trouble in the U.S. Senate. Bush defied conventional wisdom replacing O'Connor with a conservative white male, throwing Democrats for a loop. Unlike the flamboyant Bush-41 nominee Robert H. Bork, Roberts is no lightning rod yet comes with impeccable credentials. Roberts comes with the mark of Vice President Dick Cheney and Deputy Chief of Staff Karl Rove, a brilliant pick, leaving Senate Democrats and left-wing groups scrambling to find objections.

      Before serving as Bush-41's deputy solicitor general under Whitewater special prosecutor Kenneth W. Starr, Roberts served as associate counsel to the late President Ronald Reagan [1982-86]. Roberts argued 39 cases before High Court.as a private lawyer and during the first Bush presidency [1989-92]. He tried unsuccessfully to get confirmed during the Clinton years, finally reappointed by Bush to the federal Appellate Court in 2003, where he's served for two years. “A great, self-deprecating sense of humor,” said professor Patrick J. Schlitz at St. Thomas Law School, a friend of Roberts. Without Bork's bravado, Democrats will have a hard time nitpicking about possible anti-abortion rhetoric. “We continue to believe that Roe v. Wade was wrongly decided and should be overruled,” said Roberts as deputy solicitor general in a brief for the first Bush White House.

      Picking Roberts temporarily puts the Rove controversy on the back burner while the Senate gears up for confirmation hearings in late August or early September. With Roberts, Bush gets a company man and reliable conservative to replace the Court's key swing vote in O'Connor. Roberts judicial views echo Bush's often-quoted cliché that justices must interpret laws, not legislate from the bench. Unlike O'Connor, an independent thinker with moderate leanings, Roberts will most likely vote with Antonin Scalia and Clarence Thomas. “He has a good heart,” said Bush, attesting to Roberts' sound moral character, something hailed by religious conservatives opposing today's cultural relativism or an “anything goes” philosophy. Playing it low-key has kept Roberts off the headlines, well-positioned to withstand the left-wing onslaught during confirmation hearings.

      Democrats face a real dilemma opposing Roberts' nomination. If it looks too partisan, Senate Republicans could invoke Sen. Majority Leader Bill Frist's “nuclear option,” where Republicans votes to change the senate's “supermajority” of 60% to a 50% simple majority to end judicial filibusters. Like it or not, the president has a right to appointment judges—including Supreme Court justices—that reflect his judicial philosophy. Democrats already agreed to avoid judicial filibuster unless there's an extraordinary circumstance. Picking Roberts, a quietly conservative Republican, doesn't constitute an extraordinary circumstance. “This is a shrewd move by this administration,” said University of Connecticut political science professor David Yalof, handcuffing Democrats. Rushing to pick O'Connor's replacement assures a full court in October and diverts attention away from Rove.

      Roberts' close ties with the Reagan and Bush-41 administrations reassures the White House that he won't rock the boat. Conservatives have railed against moderates like Justice Sandra Day O'Connor and Justice David Souter. Roberts earned his conservative legs working closely with Clinton nemesis Keneneth W. Starr on the Whitewater investigation. His involvement in the conservative Federalist Society and quiet heroics with Starr earned him a ticket into the first Bush administration where he honed his reputation opposing liberal causes. “Roe v. Wade is the settled law of the land . . . There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent,” Roberts said during his appeals court confirmation hearings in 2003. Senate Democrats will have difficulty painting Roberts out of the mainstream.

      Whether Democrats like it or not, Bush picked a friendly ally to replace Justice O'Connor. Unless they can dig up unknown skeletons or provoke a meltdown in confirmation hearings, the 50-year-old jurist will likely pass the muster. In fairness to Roberts, his judicial record is too incomplete to accurately forecaster the future. Yet his longstanding quiet involvement in Republican circles suggests he will probably follow Scalia and Thomas. “He is civil, kind — a heartland kind of guy . . . a traditional conservative,” said Starr, perhaps highlighting Senate Democrats' biggest problem opposing Roberts' confirmation. Without a high profile personality or track records of incendiary rhetoric, Roberts should have little trouble with the Senate's most vocal liberal critics. Despite all the obstacles, picking Roberts proved, once again, Bush's keen political instincts.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

©1999-2005 Discobolos Consulting Services, Inc.
(310) 204-8300
All Rights Reserved.