Would John Roberts Be A Controversial Nominee?:
My co-blogger Jim raises some excellent points about likely opposition to John Roberts. Perhaps he's right; I'm not enough of an expert in this stuff to know for sure. I do have two quick and hopefully not-too-amateurish thoughts in response, though:

  1) I'm not sure what to make of opposition from the Alliance for Justice and other interest groups, as my understanding is that such groups generally oppose most or all of a Republican President's appellate nominees as a matter of course. The question is, to what extent does opposition among advocacy groups such as the Alliance for Justice necessarily mean opposition in the Senate?

  2) My understanding is that Roberts was opposed more than some other nominees in 2001 partly because he was understood as a strong Supreme Court contender if he made it on to the Court of Appeals. Opposing parties often try to keep Supreme Court contenders off the Court of Appeals to shrink the President's farm team, as evidenced by Republican opposition to the elevation of Sonia Sotomayor to the Second Circuit in 1998. Given that, I'm not sure Roberts would encounter similar opposition if he were nominated to the Supreme Court (especially to replace Rehquist).

  In any event, I have waded in far beyond my expertise already. VC readers, what are your thoughts? As always, civil and respectful comments only.
Hoystory (mail) (www):
Just for the record on your earlier post. Republicans would also oppose any nominees who are already dead. We consider corpses to be outside the mainstream of public opinion.
5.24.2005 10:14pm
Tim Dowling (mail):
A May 6 op-ed from the L.A. Daily Journal discussing Judge Roberts and others on the "short list" is available at:

Regarding Judge Roberts, it is similar in several ways to Juan NV's post.

Tim Dowling
5.24.2005 11:07pm
Dan Simon (www):
This whole discussion starts with the assumption that the only question is whom the Democrats might be willing to filibuster. However, the "audience" for the deal might not have been Democrat would-be filibusterers at all, but rather wobbly Republicans. Should Democrats attempt to filibuster a mainstream nominee, as hypothesized here--in direct violation of The Deal, as Republicans understand it--then it may be easier at that point for the Republicans to declare The Deal broken and muster their more moderate troops for a rule change, on the grounds that an attempt at cooperation was made, and then underhandedly taken advantage of.

Just a thought....
5.24.2005 11:33pm
Greedy Clerk (mail):
I can't take Jim's comments seriously when he buys into the canard that RBG is "far to the left" -- she was recommended by Orrin Hatch! If Bush actually constulted with Dems, as Clinton did with Republicans, there could easily be a 90-10 nominee. McConnell or Roberts both fit the bill.
5.24.2005 11:57pm
Mr. Poon (mail) (www):
My impression is that the Dems and their supporters (and the interest groups) want what their counterparts across the aisle would want in this situation: the most moderate justice possible.

Roberts is universally praised but is also, to my limited knowledge, a reliable, strong conservative (although, hopefully, not an ideologue, if you'll allow the term). If Roberts were nominated and the Dems thought they could force someone more moderate to be nominated in his place, they'd go for it.

Maybe I'm putting too simple a spin on it, but I think that goes a long way to explaining things.

That being said, I would expect Roberts to be confirmed, perhaps by a comfortable margin. And speaking as a liberal, given what I know of Roberts, there certainly are worse people out there for the job.
5.25.2005 12:21am
Jim Lindgren (mail):
Greedy Clerk writes:

I can't take Jim's comments seriously when he buys into the canard that RBG is "far to the left" -- she was recommended by Orrin Hatch!

When did I ever say that Justice Ginsburg was "far to the left" (and you even use quotation marks as if you are quoting me)?

After raising McConnell and Gonzales, I wrote:

I expected that if Bush appointed someone closer to the political center than Clinton's nomination of Ruth Bader Ginsburg, that nominee would nonetheless be filibustered as an extremist.

Saying in effect that Gonzales or McConnell are
closer to the political center than Ginsburg is NOT calling Ginsburg "far to the left" unless you consider Gonzales and McConnell extremists--and your comments implicitly assume that at least McConnell is not.

Really, Greedy Clerk, you must be more responsible in your comments.

Jim Lindgren
5.25.2005 1:01am
Even if the Dems and their interest groups had a crystal ball and could see John Roberts becoming another David Souter, they would still fillibuster. He would be called an extremist, attacked in TV or radio commercials, in testimony by law professors, have his record grossly distorted, and slandered by anonymous former co-workers. For the short time I've followed VC, I've come to really respect the bloggers and readers, but any notion that Roberts' legal ability or actual work product matters in the context of a Supreme Court nomination is naive.

The Dems are in a no-lose situation: Roberts' nomination will be the fund-raising drive of the month, they'll get to dig for potential scandals involving Roberts and any high-profile Republican who's ever been associated with him, they get an invitation to attack Republicans on civil rights, religion, abortion, etc. on everything from the Today Show to the Daily Show (almost always uncontested), and will get to extract generous concessions from Sen. Frist in exchange for merely allowing an up or down vote. All this while the base gets its red meat. If Sen. Reid did anything less than all that listed above, he would be the former Minority Leader. So what's the downside? There are bigger issues to the voting public come election time, even if most people disapproved of how Roberts would be treated.

ABA ratings? Clerkships? Scholarly work? Pro bono work? You'll never hear about these things on the nightly news broadcasts that will repetitively label Roberts as "controversial," and "right-wing." They matter in the world of law, but Supreme Court nominations have nothing to do with the law anymore.
5.25.2005 9:06am
Blake (www):
Cecilius -
I believe, at least I hope, you are being overly negative. Although this does appear to be a time of heightened partisanship, our history shows that the Supreme Court is often treated differently.

Look at Scalia, confirmed 98-0, and Ginsburg, confirmed 97-3. These are justices who would be seen toward the opposite ends of an intangible 'political' spectrum, yet they found broad, bi-partisan support.

I think that many of the loud special interest groups won't have a great deal of impact upon the nomination process if Bush consults with the Senate and proposes a reasonable candidate for the High Court. Will that happen ... that's a difficult question to answer.
5.25.2005 11:53am
Matt Barr (mail) (www):
Sorry to stray from the more specific point, but this relates to the larger point about opposition of judicial nominees: Sen. Corzine this morning on Imus drafted Judge Brown and Judge Pryor into the Constitution in Exile movement, using those words and saying they want to roll back constitutional jurisprudence to the late 19th century and institute social Darwinism.

Carry on.
5.25.2005 1:38pm
I think it's necessary to think at least two moves ahead in this chess game. Rehnquist's replacement will not move the Court's ideology in a significant way, because Rehnquist is already staunchly conservative; but the possibility of a second (or third) appointment before 2008 hangs in the air.

So if Bush nominates a conservative who "should" be broadly acceptable for the first open seat (the names Luttig, McConnell, Roberts come to mind), there will be lots of pressure on the Dems by the interest groups, but at the end of the day I don't think they'll choose to filibuster. It risks the return of the nuclear option and the possibility of no defense to a truly unacceptable nominee down the road.

By the same token, if the Dems allow the first appointment to sail through with broad bipartisan support, that helps establish their bona fides in the event they filibuster a more extreme nominee down the road. But both sides can see the chessboard. And for this reason, I don't expect the President to give the Dems a chance to establish their good faith; I suspect the first nominee will be the most extreme one.
5.25.2005 3:00pm
jgshapiro (mail):
Steve, the trouble with your analysis is that the first nomination will almost certainly be for Rehnquist's seat -- or it will be two nominations at once (Rehnquist and O'Connor).

If Bush nominates an extremist to be chief justice, even if that person were confirmed, their effectiveness in holding together a majority would be comprmised by their extremism. That is why most people think it is unlikely Bush would elevate Scalia or Thomas, even assuming one of them could get through. Moreover, the Democrats would have an easier time filibustering a new chief justice than an associate justice, since the title conveys the impression that the former is much more powerful.

For this reason, I would expect the opposite of what you predict -- for Bush to nominate a relative moderate for chief justice (McConnell, Gonzalez or Wilkinson), and to save the more extreme nominee (Brown, Estrada, Luttig, etc.) for the next vacancy. After all, by then the filibuster deal may have crumbled anyway and Bush will have nothing to lose by nominating a true believer.

If both O"Connor and Rehnquist leave simultaneously, then expect the Democrats to filibuster the more extreme of the two nominees (probably the replacement for O'Connor) and to let the other nominee pass. I don't think they could get away with filibustering two Supreme Court nominees simultaneously.
5.25.2005 6:20pm