Supreme Court Nominee Roberts A Cypher

by William Fisher

(IPS) NEW YORK -- Bush's political skills will be put to the test by the nomination of Judge John G. Roberts Jr. to be the next associate justice of the U.S. Supreme Court.

The surprise nomination found left-leaning groups like the National Abortion Rights Action League (NARAL) and People for the American Way (PFAW) predictably urging their supporters to begin the battle to defeat Roberts.

Right-wing organizations like the Family Research Council just as predictably showered the nominee with praise.

But groups on both left and right were said to be relatively more muted than was generally expected.

The reason for the quandary facing both liberals and conservatives was summed up by the Center for American Progress (CAP), a liberal think-tank headed by John Podesta, Bill Clinton's former chief of staff, whose website described Roberts as "The Nominee You Know Nothing About."

"Beyond his legal credentials, little else is known about whether John Roberts lies in the mainstream of legal thought and opinion," said CAP's early morning email newsletter.

However, that did not stop the president's right-wing conservative base from heaping encomiums on the nominee.

Tony Perkins, president of the aggressively pro-life Family Research Council, called Roberts an "exceptionally well-qualified and impartial nominee."

And Sean Rushton, executive director of the conservative Committee for Justice, weighed in with, "I think it's a big victory for anybody who thinks that the Supreme Court has badly overstepped its legitimate authority over the past decades."

Nor did the paucity of hard information on the nominee's personal views deter groups on the left from quickly weighing in for his defeat. Within minutes of the announcement, MoveOn.org, a progressive political action group heavily funded by billionaire Democrat Goerge Soros, issued a call to war.

"In nominating John Roberts, the president has turned to a right-wing corporate lawyer and ideologue for the nation's highest court," he said. "Instead of a mainstream jurist with a distinguished career as someone who protects the rights of the American people, Bush chose another right-wing crony." The American Civil Liberties Union expressed "deep concern" about some of Roberts' civil liberties positions.

NARAL predicted, "If Roberts is confirmed to a lifetime appointment, there is little doubt that he will work to overturn Roe v. Wade." He argued to the Supreme Court that Roe was wrongly decided and should be overruled."

Ralph G. Neas, head of the liberal People for the American Way, found it "extremely disappointing that the president did not choose a consensus nominee in the mold of Sandra Day O'Connor."

Another liberal advocacy group, The Feminist Majority, said, "Everything we know about Judge Roberts' record indicates that he will be a solid vote against women's rights and Roe v. Wade." The group also said it was "extremely disappointed that the president did not appoint a centrist woman to fill Sandra Day O'Connor's seat on the Supreme Court."

The potential judicial firestorm was triggered by the retirement decision of Associate Justice Sandra Day O'Connor, the first woman to serve on the Supreme Court.

O'Connor, appointed by Pres. Ronald Reagan in 1981, is described by many as "a mainstream conservative" who nevertheless often represented the "swing vote" in closely contested decisions -- the "five" in 5-4 vote outcomes.

But the dilemma facing groups on all sides of the political spectrum is that the views Roberts has expressed in court are not necessarily his own. He expressed many of them while acting as principal deputy solicitor general -- the government's lawyer -- presenting the official view of the administration, or as a lawyer in private practice representing the interests of his clients.

And, to compound the uncertainty, Roberts joined the appellate court relatively recently, so does not have a long "paper trail" of decisions to suggest how he might rule on an array of constitutional disputes.

A former clerk for Justice William Rehnquist, Roberts, 50, argued 39 cases before the Supreme Court as deputy solicitor general, before he was named in 2003 to the U.S. Court of Appeals for the District of Columbia Circuit. He was confirmed by the Senate on a 99-0 vote.

Editorials in influential U.S. media also reflected both the ideological certitude and the ambiguity surrounding this nominee.

Said the left-leaning magazine The Nation, "For more than a decade, (conservative Justices Antonin) Scalia and (Clarence) Thomas have campaigned without success to reverse (Roe v. Wade). All indications are that Roberts will be the clone Scalia and Thomas need to complete their machinations."

Roe versus Wade was the 1973 Supreme Court decision that removed barriers to a woman's right to choose to have an abortion.

The New York Times editorial said, "One of the most important areas for the Senate to explore is Judge Roberts's views on federalism -- the issue of how much power the federal government should have."

"The far right is on a drive to resurrect ancient, and discredited, states' rights theories. If extremists take control of the Supreme Court, we will end up with an America in which the federal government is powerless to protect against air pollution, unsafe working conditions and child labor. There are reasons to be concerned about Judge Roberts on this score."

The usually liberal Los Angeles Times cautiously advised, "Although some liberal interest groups rushed to portray Roberts as a dangerous extremist, his nomination seems to signal a desire on the part of the White House to avoid a nasty confirmation battle."

The Washington Post's editorial struck a similar measured tone. "Judge Roberts is a conservative, (and) it is likely that he will shift the Supreme Court toward the right. But his nomination is not a provocation to Democrats. Mr. Bush deserves credit for selecting someone with the potential to attract broad support," it wrote.

This morning, Republican Senator Arlen Spector of Pennsylvania, chairman of the senate Judiciary Committee, said hearings on the Roberts nomination will probably take place in September and be completed in time for the nominee to be confirmed by the full Senate when the Court reconvenes in early October.

One of many unanswered questions is whether Roberts' opponents will filibuster the nomination, thus probably triggering what has become known as the "Nuclear Option" -- a code term referring to a proposed change to the interpretation of the Senate rules.

Currently, Senate rules allow any member to prevent a confirmation vote by staging a filibuster. This can be overridden by a three-fifths majority (60 out of 100 senators) via a cloture (end debate) motion.

The Nuclear Option would allow a simple majority -- 50 out of 100 senators, plus the vice president -- to end a judicial filibuster. Once debate is ended, the nominee can be confirmed by a simple majority vote.