Bush choice leaves foes little ammo

July 22, 2005|By Jules Witcover

WASHINGTON - After several months on the defensive on issues from Social Security reform to the fate of Karl Rove, President Bush has recovered his footing, temporarily, at least, with his politically deft nomination of Judge John G. Roberts Jr. to the Supreme Court.

Mr. Bush had the liberals breathing fire when he said pointedly that he favored another Justice Antonin Scalia or Justice Clarence Thomas to replace the retiring Justice Sandra Day O'Connor.

Now he has disarmed these critics with his choice of a solid conservative who does not have the combative judicial temperament of Justice Scalia nor the image as a legal lightweight that still burdens Justice Thomas.

As a result, they're scrambling to make the case that Judge Roberts, despite his placid temperament and acknowledged legal brilliance, is their philosophical soul mate.

One liberal group, People for the American Way, has decided that the way to defeat the Roberts nomination is to remind the public of the right-wing voting records of Justices Scalia and Thomas. Adding Judge Roberts, the group insists, will produce "a Scalia-Thomas Court."

Not surprisingly, the abortion rights lobby has quickly declared Judge Roberts unacceptable based on his statement to the Supreme Court 14 years ago as deputy solicitor general in the senior Bush administration that the court's decision legalizing abortion was "wrongly decided and should be overruled."

His subsequent comment in 2003 that he was merely speaking for his client and that he recognized Roe vs. Wade as established law has not mollified the abortion defenders. But such single-issue groups are predictable in their opposition and will not be the sole determinants of his fate.

Some Democrats also question the nominee's minimal experience on the federal bench. But politically, it may be an advantage to him by denying critics easy targets in terms of written decisions and speeches.

As a result, the armies of researchers mobilized by such liberal groups as the Alliance for Justice and People for the American Way now face a more elaborate task of proving that Judge Roberts would ensure a Scalia-Thomas court.

But the yardstick for a possible Senate filibuster agreed to by the bipartisan Gang of 14 that avoided Senate Majority Leader Bill Frist's "nuclear option" on judicial filibusters seems now to set a very high marker for any rejection. That agreement stipulated that only "extraordinary circumstances" would warrant a filibuster.

The liberals also had spent weeks expressing fear that Mr. Bush would steamroller them. Instead, he announced that he and staff aides had consulted with more than 70 of the Senate's members. Even with 55 of the 100 being Republicans, the Democrats can't say their advice-and-consent role was completely ignored.

Still, Judge Roberts is not home free until he weathers the trial of tough interrogation by the Senate Judiciary Committee and later debate on the Senate floor. Some Democrats, such as Sen. Charles E. Schumer of New York, who voted against Mr. Roberts on his appellate court nomination, will be probing for some philosophical Achilles' heel to weaken the case for his confirmation.

Those liberals who fear Mr. Bush is determined to guarantee a far-right court long into the future have another cause to worry beyond Judge Roberts. With a second opportunity before too long for him to nominate another conservative when Chief Justice William H. Rehnquist steps down, the liberals' fight to prevent "a Scalia-Thomas court" may be only in its first round.

Jules Witcover writes from The Sun's Washington bureau. His column appears Wednesdays and Fridays.

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