Roberts v. Senate

September 06, 2005

THE INCREASINGLY predictable theater of Supreme Court confirmation hearings was about to meet perhaps the most carefully calculated nominee ever when the stakes suddenly rose.

But not even the death last weekend of Chief Justice William H. Rehnquist has changed the odds much. President Bush's decision yesterday to shift Judge John G. Roberts Jr., his nominee for Sandra Day O'Connor's associate justice post, into the top job was a tribute to the well-oiled efficiency -- and good-natured blandness -- of the Roberts candidacy.

This relatively inexperienced jurist, who would arrive like most other chief justices with no prior experience on the top bench, was being described yesterday as the "safe choice"-- with the real battle yet to come over the once-again vacant O'Connor seat.

Viewers tuning to the confirmation hearings can still hope that Judge Roberts, 50, will reveal something of how he might perform for potentially three decades or more as the leading voice on the court that holds so much power over American life. More likely he'll be charming, but opaque.

Senators and interest groups most frustrated by that experience have only themselves to blame.

Robert H. Bork, the last Supreme Court nominee to openly share his views, was labeled an "extremist" by the Senate Judiciary Committee during his 1987 confirmation hearings and all but eviscerated. Anthony M. Kennedy, President Ronald Reagan's second choice for the job, charted the successful course of polite evasion all nominees have followed since.

Few understand this tactic better than Judge Roberts, who as a young Reagan administration lawyer coached Justice-to-be O'Connor in 1981, advising her to avoid giving any specific responses to direct questions on legal issues likely to come before the court. He followed that advice himself during his 2003 confirmation hearings for an appellate court seat.

A torrent of documents from Judge Roberts' early years as a government lawyer, from his experience in private practice and from his tenure on the federal bench don't contain many more clues about the inner man. He's certainly conservative, and says he believes in a limited role for the judiciary. But he has successfully resisted easy labels.

To further his prospects, Judge Roberts -- by all accounts a brilliant, witty and amiable fellow -- has developed friendships across the legal and political spectrum. Those friends endorsed his nomination for the appellate job and remain in his corner.

If he survives the grumping and grilling, Judge Roberts might well turn out to be a fine, evenhanded justice -- or he might not.

Either way, it is a disservice to the nation that he can't come to these hearings as an open book. Even more shameful is the reason: Interest group manipulation of the process is so pervasive that neither Judge Roberts nor any other nominee can be assured he or she will be greeted by senators with open minds.

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