100-0 Nominees?: Over at Legal Affairs, the Debate Club is considering whether there are any nominees to the U.S. Supreme Court who are so outstanding that they would receive a 100-0 vote in the Senate. The goal is to find someone who is "approved by conservatives, lauded by moderates, and acceptable to liberals." The name that comes to mind to me is John Roberts of the D.C. Circuit. I am repeatedly struck by how people from across the political spectrum are tremendously impressed by him and his work. Especially as a replacement for a conservative Chief, Roberts seems like the best shot at a consensus candidate. Unfortunately, neither of the two participants to the Debate Club exchange have mentioned Roberts; Arkadi Gerney is only offering names that conservatives would obviously reject, and Carl Tobias so far has only mentioned judges who are dead.
Can we trust the Senators to live up to THE DEAL?--

I share the common ambivalence to the new deal on filibusters.

Before the filibuster deal, I thought that some of the pro-Bush defenders of the filibuster were being unrealistic. The assumption seemed to be that, if Bush nominated a moderate or just an ordinary conservative for the Supreme Court, then there wouldn’t be a filibuster, but if he appointed an extremist, then there would be. Further, the thinking went that, if the Democrats in the Senate filibustered anyone but an extremist, they would pay for it with the public.

Since my politics are well to the left of anyone Bush would seriously consider for the Supreme Court, that scenario would be an attractive prospect to me — if it were true.

But — before THE DEAL — I thought that anyone that Bush could appoint would be filibustered, no matter how moderate. He or she could be a decent, reserved, open-minded, unprejudiced, intelligent conservative such as Judge Michael McConnell. Or he could even be a judge who was pro-affirmative action and (in his opinions, at least) pro-abortion such as Alberto Gonzales. Indeed, a high staffer with one of the major public interest groups that the Democrats rely on to evaluate judicial candidates told me to expect an attempt to filibuster Gonzales if he is appointed to the Court, even though she admitted that Gonzales was more liberal than anyone else that Bush could conceivably appoint. In other words, 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. (By the way, McConnell in particular would seem to be an almost ideal candidate for Chief Justice, with a calm, responsible, principled manner that should smooth over ideological differences on the Court. According to those who know John Roberts, he would be another.)

Further, once the TV ads would start running portraying Bush’s nominee as not only extreme, but also mean and corrupt, it would be the Republicans who would be under fire for supporting him or her, not the Democrats. And, unlike a political campaign, the nominee would be discouraged from making the rounds of talk shows to campaign for the office. (Imagine in the last election if we had only pro-Bush or only pro-Kerry ads! Getting a supermajority of 60% in Congress is difficult if you can’t get even get a majority of the public first.)

Of course, before THE DEAL, a Republican could still support the right to filibuster nominees without believing that Democratic senators would filibuster only an extremist, but I thought the factual basis of some principled pro-filibuster advocates (that a filibuster was not inevitable) was wrong, especially once a public smear campaign was in full force against any nominee that Bush put forward. (Of course, the strongest argument against repealing the 60-vote cloture rule is that the Senate’s rules themselves require a supermajority to change them — whether that rule must be followed if it obstructs the obligation to “advise and consent” is a closer question.)

So how does THE DEAL change all this? I don’t know, but it might. I no longer view a filibuster as a near certainty; it depends on the honesty and courage of the Democratic signatories.

If THE DEAL merely postpones a showdown until Bush nominates a new justice for the Supreme Court, then it is a big mistake for Republicans. It all depends on what “extraordinary circumstances” means. If the threshold is that Bush has nominated someone that People for the American Way and the Alliance for Justice say is an extremist, someone whom we are told is WAY OUT OF THE POLITICAL MAINSTREAM, then we can be virtually certain that the Democrats will have the “extraordinary circumstances” that they need to filibuster anyone Bush would appoint to the Supreme Court. Yet almost any judge that Bush would propose for the Court would probably be closer to the political center than the typical activist at People for the American Way or the Alliance for Justice.

But if the Democratic senators signing THE DEAL will really agree to cut off a filibuster if Bush nominates someone like most of the names that have been floated so far, then THE DEAL will have accomplished its purpose. The 7 Democrats are saying in effect: “Trust us. If you won’t abolish the filibuster, we can stand up to the demagoguery coming from our friends and allies on particular nominees for the federal courts.”

If those Democratic senators break their promises and give in to the pressure to filibuster ordinary conservatives, they may not pay a price with their constituents (the smear campaign will give them cover), but commentators, press pundits, bloggers, and fellow senators — indeed, most of us in the intellectual chattering class — will know that the solemn word of these men and women can’t be trusted. And the senators themselves will have to look themselves in the mirror every morning. For all of our sakes, let’s hope they value clear consciences. (Yes, I know that Robert Byrd is a signatory, but I will leave his personal characteristics aside in this post, trying to focus mainly on the other 6 Democrats.)

Based on recent behavior in the Senate, I’m pessimistic, but not entirely devoid of hope.

By the way, the 7 Democratic senators are Robert Byrd, Daniel Inouye, Mary Landrieu, Joseph Lieberman, Ben Nelson, Mark Pryor, and Ken Salazar. The 7 Republican senators are Lincoln Chafee, Susan Collins, Mike DeWine, Lindsey Graham, John McCain, Olympia Snowe, and John Warner.

John Roberts and 100-0 Support.--

My co-blogger Orin is floating John Roberts as someone who might be able to get consensus support in the Senate (if not the 100-0 support that is being debated at the Debate Club). As my last post indicated, I have a more pessimistic view of whether opposition to a Bush Supreme Court nominee could be avoided, no matter whom Bush appointed.

Roberts was nominated for the DC Circuit in 2001 and was blocked for two years in the Senate Judiciary Committee, finally getting voted out of committee in May 2003. His committee vote was strong (16-3), but not unanimous. The Senate confirmation was without a roll call vote.

One has only to read the Alliance for Justice reports and press releases on Roberts to realize that, like almost any other Bush nominee, he would face a buzzsaw if nominated to the Supreme Court.

On its website, the National Council of Jewish Women lists the following organizations as opposing Roberts for the federal judiciary in 2003:

Alliance for Justice
Americans for Democratic Action
Feminist Majority
Leadership Conference on Civil Rights
NARAL Pro-Choice America
National Family Planning and Reproductive Health Association
National Council of Jewish Women
National Organization for Women
NOW Legal Defense and Education Fund

Indeed, Roberts was blocked when the first President Bush tried to appoint Roberts. As the Alliance for Justice puts it:

President George H.W. Bush nominated Mr. Roberts to the D.C. Circuit, but he was considered by some on the Senate Judiciary Committee to be too extreme in his views, and his nomination lapsed. He was nominated by President George W. Bush to the same seat in May 2001.

Here is the opening of the Alliance's Report, suggesting how someone whom some reasonable people might view as uncontroversial can depicted as unfit for even the DC Circuit, let alone the Supreme Court:

John G. Roberts, nominated by President Bush to a seat on the United States Court of Appeals for the D.C. Circuit, has a record of hostility to the rights of women and minorities. He has also taken controversial positions in favor of weakening the separation of church and state and limiting the role of federal courts in protecting the environment. The Alliance for Justice opposes his nomination to the D.C. Circuit.

Although Mr. Roberts is indisputably a very capable lawyer, that alone does not qualify him for such a prestigious and critical post. As a group of over 300 law professors stated in a 2001 letter to the Senate,1a lifetime appointment to the federal bench is a privilege that comes with great responsibility and requires much more. Every nominee bears the burden of showing that he or she respects and pledges to protect the progress made in the areas of civil rights and liberties, the environment, and Congress’ constitutional role in protecting the health and safety of all Americans. Mr. Roberts’ record, particularly his record as a political appointee, argues strongly that he would not do so.

While working under Presidents Reagan and Bush, Mr. Roberts supported a hard-line, anti-civil rights policy that opposed affirmative action, would have made it nearly impossible for minorities to prove a violation of the Voting Rights Act and would have “resegregated” America’s public schools. He also took strongly anti-choice positions in two Supreme Court cases, one that severely restricted the ability of poor women to gain information about abortion services, and another that took away a key means for women and clinics to combat anti-abortion zealots. [In rereading this post after posting it, I think that a personal disclosure might be advisable. I consulted pro bono for NOW on the case (Scheidler) that I think is being referred to here.]

Finally, Mr. Roberts is being considered for lifetime tenure on a court that is only one step below the U.S. Supreme Court and is acknowledged to be the second most important court in the country. His nomination must be considered in light of the special significance of that court. Moreover, Judiciary Committee Chairman Hatch’s insistence on scheduling three controversial Circuit Court nominees, including Mr. Roberts, for confirmationhearings on a single day ensured that senators had no meaningful opportunity to question Mr. Roberts about his views on a number of critical issues. The Alliance for Justice urges the Senate to reject his confirmation.

This is what I was talking about in my last post. The 7 Democrats signing the deal on filibusters are in effect promising to stand up to what will be incredible pressure from organizations like those who opposed Roberts before, organizations such as the Leadership Conference on Civil Rights, the Alliance for Justice, the ADA, and NOW [for whom I have done work pro bono]. Can the senators live up to their promise?

More On 100-0 Nominees: While I'm on the topic of 100-0 nominees, another name they should be talking about over at the Debate Club is David F. Levi, Chief Judge of the Eastern District of California. Levi is a moderate Republican Bush I appointee who is brilliant and universally admired; it's a shame he's not at least on the list of nominees for the Ninth Circuit.
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.
Comments
Opposition to Roberts:

I would add four additional points to the discussion of potential opposition to John Roberts:

1) Roberts is an outstanding lawyer, excellent judge, and impressive individual. He is the sort of person, irrespective of ideology, who President's should nominate to the High Court (and those who have worked with him generally feel this way, even when they disagree profoundly with his legal views).

2) Roberts was initially nominated to the D.C. Circuit by the first President Bush, and the Democratic Senate refused to move the nomination. Some believe this was due to concern for the overall "balance" of the D.C. Circuit, or perhaps it languished as nominations often due in the last year or so of a President's term. Either way, he was nominated back then, and never confirmed.

3) Activist groups have already begun to misrepresent John Roberts record on various cases. For instance, he has been accused of voting to overturn the Endangered Species Act. In actuality, Roberts dissented from a denial of en banc review because, he stated, the panel decision was in conflict with those of other circuits. His opinion did not challenge the panels conclusion. Rather, he argued that there were reasons to be concerened about the conflicting (indeed, incompatible) rationales adopted by different circuits, and that this merited en banc review.

4) Last, and most distressingly, the leaders of various liberal activist groups are already on record stating that they would urge a filibuster of Roberts, even if he were nominated to replace Rehnquist. While I doubt (hope) this would not derail his confirmation, I suspect it would sway at least a few Senators.

NBC and AP reporting that John Roberts is the nominee.--

NBC and AP are reporting that John Roberts is the nominee.