The Nomination of John Roberts: Battle in the Wings, Confirmation in the Senate

John Roberts, currently a justice on the Court of Appeals, District of Columbia Circuit, has been nominated by President Bush to the Supreme Court of the United States. Now that we have a name, we can begin a real debate. The criticism on Roberts will be that he is hostile to civil rights, the environment and legalized abortion. He also has a history of allowing more church/state interaction than some on the left would prefer.

Those in favor of legalized abortion strongly opposed Roberts’ nomination to the appellate court and that opposition was strongly countered by groups seeking to overturn Roe. Does this portend another interest-group battle this time around? Yes. Put money on it. Nothing is more divisive than abortion and Roberts’ 1991 brief (which was written for a client) supporting the overturning of Roe v. Wade will likely be the big story early on.

But will there be trouble in the Senate? Unlike other judges who are perceived to be right-leaning, Roberts was not filibustered and was unanimously confirmed to the D.C. Circuit Court in 2003. But, as an editorial by Alberto Gonzales pointed out two years ago, Roberts was initially appointed to the D.C. Circuit Court in 1992 by President George H. W. Bush but never received a hearing. He was nominated again in 2001 by the current President Bush but, again, never received a Senate Judiciary Committee hearing while the Democrats controlled the Senate. It was only after the Republicans took control that Roberts went in front of the committee where he was sent to the floor by a 16-3 vote.

This is a very interesting history. It indicates that Roberts is controversial enough for the Democrats to quietly oppose but too respected and too clearly qualified for the Democrats to openly oppose. So what happens now that the stakes are high?

As The Volokh Conspiracy discussed in May, there is solid reason to believe the liberal interest groups will strongly oppose a Roberts nomination and could sway a few Senators to do the same. But Roberts 100-0 confirmation to the Circuit Court bodes well for his chances here. I simply cannot see a rational reason why the Democrats in the so-called gang of 14 would oppose this nomination—and if they are on board, then Roberts will take O’Connor’s seat on the Supreme Court.

Roberts is conservative but nothing in his record reveals him to be outside the right side of the modern mainstream. There will be a fight in the wings over Roberts. But I think he’ll make it through the Senate without any deafening battles. This was an astute choice by President Bush. It appeases his base but won't send the Senate into crisis.