By Richard S. Dunham Round One of the heavyweight fight for the future of the Supreme Court has to go to George W. Bush. In choosing John G. Roberts, a respected D.C. Appeals Court judge, the President split Senate Democrats and liberal advocacy groups from the get-go. So cautious were Democrats after the prime-time July 19 announcement that Senator Charles Schumer (D-N.Y.) felt compelled to praise Bush's nominee for having "outstanding legal credentials and an appropriate legal temperament and demeanor." Plus he's a Buffalo Bills football fan, Schumer quipped, in a show of home state pride.
Those aren't fighting words. Such an opening salvo from one of the Democrats' sharpest partisans on the Senate Judiciary Committee leaves ideology or refusal to answer questions as just about the only excuses for trying to disqualify the 50-year-old judge. It will be difficult for Democrats to portray him as an out-of-the-mainstream extremist.
While Roberts is conservative, his record as a jurist provides slim pickings for the opposition to attack. He has spent just two years on the bench after two decades as a lawyer and representative for clients ranging from the first President Bush to the cosmetics industry.
MIXED MESSAGES. Senate Minority Leader Harry Reid (D-Nev.) and Patrick Leahy, the top Democrat on the Senate Judiciary Committee, immediately urged caution. But leftist firebrands weren't buying it. "It is extremely disappointing that the President did not choose a consensus nominee in the mold of Sandra Day O'Connor," says People for the American Way President Ralph G. Neas.Replacing O'Connor with someone who is not committed to upholding Americans' rights, liberties, and legal protections would be a constitutional catastrophe."
The mixed messages from the opposition contrasted sharply with a united front of Republicans and conservatives, who lavished praise upon the former law clerk to Chief Justice William Rehnquist. "Roberts is a brilliant, careful, and wonderfully gifted lawyer," says another former Rehnquist clerk, Richard Garnett, now a Notre Dame law professor.
Business groups welcomed Roberts' nomination. He represented numerous corporate clients during his two stints at the blue-chip Washington law firm of Hogan & Hartson. U.S. Chamber of Commerce President Tom Donohue called him "highly regarded and well respected." Roberts also put in time as a lobbyist for the Cosmetic, Toiletry & Fragrance Assn. on regulatory issues involving the Food & Drug Administration.
"IN THE MIDDLE." Even social conservatives believe they've hit the jackpot. As a lawyer in the first Bush Administration, Roberts wrote a legal brief in 1990 declaring that the Roe v. Wade abortion case "was wrongly decided and should be overruled."
While some backers have argued that he was merely reflecting his client's views at the time, movement conservatives feel he remains firmly in the overturn Roe v. Wade camp. "Everything we know about Judge Roberts tells us that he fulfills the President's promise to nominate a judge who will strictly interpret the Constitution and not legislate from the bench," says Jan LaRue, chief counsel to Concerned Women for America. "He clerked for Rehnquist, which says a lot."
If President Bush's goal is to mold the federal judiciary in his conservative image, he could hardly have done a better political balancing act. Schumer observed that, on the spectrum ranging from consensus choice to partisan warrior, Roberts is "in the middle."
ANY SKELETONS? Even if liberal groups can muster enough senators to fight a spirited battle to block the nomination, opponents will have a hard time explaining how Roberts could have won Senate confirmation to his appellate judgeship two years ago on a mere voice vote but is no longer acceptable as a jurist.
Unless the nominee self-destructs in his confirmation hearing, or liberals unearth some skeletons among the pinstripes in his closet, the Supreme Court could soon be making a big right turn.
Dunham is BusinessWeek's Washington Outlook editor