Justice for the far right?

The Roberts Nomination

July 21, 2005|By Michael Greenberger

WHILE PRESIDENT Bush's nomination of Judge John G. Roberts Jr. to the Supreme Court raises many questions, one matter is certain. The far right, Mr. Bush's strongest constituency, is unhappy with the court's present direction on social issues - decisions upholding abortion rights and affirmative action and undercutting sodomy laws and the death penalty.

By assuming the seat of Justice Sandra Day O'Connor, Judge Roberts, if confirmed, would, like her, be a critical vote on many of these issues and therefore decide the continuing vitality of these decisions.

The far-right mantra is that this court has been controlled by "judicial activists" who invent constitutional protections. Mr. Bush thus repeatedly states he will not appoint judges who "legislate from the bench."

What is startling about this critique is that it is directed to an institution almost exclusively shaped by conservative Republican presidents.

Since 1969, those presidents have appointed 10 of the 12 confirmed justices (not counting William H. Rehnquist's elevation to chief justice). Most of the 10 have been touted on their nomination as "strict constructionists."

Yet seven of the 10 appointments have been justices who have joined the court's centrist or liberal factions. Only Justices Antonin Scalia, Clarence Thomas and Rehnquist have consistently fulfilled their supporters' expectations.

As a general matter, Justices O'Connor and Anthony M. Kennedy, both appointed by President Ronald Reagan, have been indisputably conservative jurists. But they have also been moderating influences, with one or the other siding with the four more liberal justices on issues of importance to social conservatives. For that reason, jurists of the bent of Justices O'Connor and Kennedy would be wholly unacceptable to the far right today.

One possible historical lesson may be that whatever the nominee's conservative proclivities, the probabilities are that after he or she takes the bench, those views will be moderated.

But that is a lesson that has, to their increasing dismay, also been learned by social conservatives. Especially after seeing Justice David H. Souter, a nominee of President George H. W. Bush, move so quickly to the liberal side of the court, social conservatives now insist on reliable evidence that the ideological wishes of the president will be permanently adhered to by a prospective nominee.

Yet recent polls show overwhelmingly that the public wants the court's ideological direction to stay unchanged. The public, including many Republicans and independents who supported Mr. Bush, also wants a nominee who continues the moderating role of Justice O'Connor. Specifically, it does not want Roe vs. Wade overturned - a decision about which she has been supportive.

Judge Roberts' appointment seems to meet that public desire. He is reportedly personable, poised and modest, and a very able lawyer. Because of the brevity of his appellate service, his written record is considered by many to not be extensive enough to make definitive judgments about the scope of his conservative views.

The fly in the ointment may be the complete embrace of his nomination by the far right. This approval is not easy to attain. The slightest indication that a potential nominee would not remain "true" to the social conservative cause has meant disqualification for the vacancy. Thus, Attorney General Alberto R. Gonzales, a close presidential friend, was almost certainly eliminated from consideration because of suspected unreliability on abortion.

Because of this, a short list of acceptable nominees was created by social conservatives, and by all accounts, Judge Roberts' name was included.

His inclusion may derive from his membership in the Federalist Society, the conservative lawyers' group most closely identified with reinforcing the Thomas/Scalia wing of the court. Or it may be because he has loyally served the conservative administrations of Presidents Reagan and George H. W. Bush. Or because, as a government and private lawyer, he represented clients advocating positions substantially to the right of the court's present jurisprudence.

For example, much will be made of his assertion in a brief as a government lawyer "that Roe was wrongly decided and should be overruled." He has said that this and other statements possibly viewed as controversial were made while undertaking his ethical obligation to advocate vigorously on behalf of his clients and they do not reflect settled personal views.

Whatever the reason, he has won the hard-to-obtain blessing of the far right.

During Judge Roberts' confirmation hearings, Democratic senators will probe to see if his views in fact suggest his favoring a radical shift of court to the right. If evidence of this kind is adduced, the public's opinion about the nomination may be adversely affected. It may therefore very well mean that, with the help of moderate Republicans, he will either be defeated outright or a filibuster against his nomination will be sustained.

It is well worth staying tuned.

Michael Greenberger is a professor at the University of Maryland School of Law.

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