A Fight, Maybe, but Not a Battle

Times Staff Writer

With the nomination Tuesday of John G. Roberts Jr. to the Supreme Court, President Bush reaffirmed his commitment to a bold-stroke presidency -- but also signaled an uncharacteristic interest in reducing his exposure to political risk.

Bush repeatedly has shown a willingness to accept pitched political battles as the price of pursuing dramatic change. The selection of Roberts, widely considered more conservative than retiring Justice Sandra Day O’Connor, underscores Bush’s desire to tilt the court to the right.

“For me as a conservative, it is a very impressive pick because it rejects a superficial analysis that says: ‘I’m going to pick a woman or I’m going to take a moderate and dodge a fight,’ ” said veteran GOP strategist Bill Kristol.

But in Roberts, a judge since 2003 on the powerful U.S. Court of Appeals for the District of Columbia Circuit, Bush also chose a nominee unlikely to inspire either the most enthusiasm among hard-core conservatives or the most intense opposition from Democrats and liberal groups.


In effect, Roberts may represent an effort to thread the needle in filling the court vacancy. The selection could offer Bush an opportunity to maximize his chance of a relatively smooth confirmation while minimizing the danger of either conservative disaffection or scorched-earth Democratic opposition.

As a former clerk to Chief Justice William H. Rehnquist, a legal official in the Reagan and George H.W. Bush administrations and a reliably conservative voice on the bench, Roberts is well-respected in Republican circles.

Conservative activists welcomed the nominee more enthusiastically than they would have Edith Brown Clement, the justice from the U.S. 5th Circuit Court of Appeals who, for part of Tuesday, was Bush’s rumored pick.

Roberts also has drawn high marks from experts in both parties for his qualifications, and may present a limited target for Democrats because he has written few decisions in his two years as a federal judge.

Roberts has won praise from some prominent Democratic lawyers -- which could help insulate him against attacks during his confirmation process. Three Democrats on the Senate Judiciary Committee opposed his confirmation to the appellate court in 2003; the full Senate confirmed him on a voice vote.

“This is a shrewd move by this administration,” said David Yalof, a University of Connecticut political scientist who has written extensively on judicial nominations. “On the one hand, this is an individual who staunch conservatives are going to take to very quickly. And at the same time, because he’s only been a judge for two years, there is not going to be a large target in terms of attacking him for his judicial opinions.”

That doesn’t mean Roberts won’t provoke a significant confrontation in Congress. The fight won’t fully take shape until activists on both sides have explored his record and views more thoroughly -- a process that won’t culminate until his confirmation hearings before the Judiciary Committee later this summer.

But because activists on both sides have stockpiled so much money for a Supreme Court fight -- and because O’Connor’s successor is viewed as so critical to the court’s ideological balance -- Bush’s choice to replace her was virtually guaranteed to generate fireworks.


“No matter who got nominated, there is just a lot of money waiting to talk,” said Richard W. Garnett, a professor at Notre Dame Law School and former law clerk for Rehnquist.

It was telling that when word of Roberts’ nomination surfaced more than an hour before Bush officially announced it, conservatives had released statements praising the selection and liberal groups, such as People for the American Way, declared that the pick “raises serious concerns.”

One senior Democratic Senate aide cautioned that the support for Roberts’ appellate court nomination did not guarantee equally smooth sailing for the Supreme Court.

Liberals already were focusing on Roberts’ co-authorship of a legal brief during the first Bush administration that argued Roe vs. Wade, the 1973 decision guaranteeing the right to abortion, was wrongly decided. Democrats and their allies also quickly raised questions about his record on environmental issues.


Wade Henderson, executive director of the Leadership Conference on Civil Rights, declared that Roberts “may be a hard-nosed extremist with a soft conservative facade.”

Nobody expected Bush’s choice to be welcomed with a unanimous chorus of praise. But given that Roberts can expect overwhelming Republican support in the Senate, the real question may quickly become whether he raises enough opposition among Democrats to generate a filibuster.

It’s unclear whether his record will provoke the degree of unease that would justify such a dramatic step, especially after a bipartisan group of Republican and Democratic senators in May agreed that the filibuster should be employed only in “extraordinary circumstances.”

“This is probably one of those close calls [for Democrats] on the filibuster, but the decision probably weighs against the filibuster in the end,” Yalof said.


Roberts’ selection reflected a more nuanced approach than Bush has employed on many other issues, especially since his reelection in November.

This year, Bush has advanced a series of initiatives that ignited major confrontations with Democrats -- from his effort to restructure Social Security to his nomination of John R. Bolton as United Nations ambassador.

Those polarizing battles, along with disillusionment over the grinding war in Iraq and anxiety about the economy, has kept Bush’s approval rating in most major polls below 50% this year.

That’s well below the levels of other post-World War II presidents during the first year of their second terms.


Among independents, Bush’s approval rating has exceeded 42% once since April in Gallup Organization surveys. Among Democrats, his rating has exceeded 20% once since January.

In that environment, even some Republicans acknowledge that the White House might not welcome a full-scale partisan confrontation over the Supreme Court, especially while trying to revive the president’s Social Security initiative and avoid greater partisan division over the war.

The initial reactions indicate the selection of Roberts did not constitute the consensus nominee Democrats had demanded.

But neither is he the most provocative choice that Bush could have selected: Federal appellate court judges J. Michael Luttig or Edith H. Jones probably would have sparked much more intense opposition from Democrats and liberal groups.


And moderate Democrats who have said they would only oppose a nominee who disregarded legal precedent for ideological reasons may be more comfortable with Roberts than choices such as Luttig or Jones.

“If they try and oppose him, they are going to look angry and intemperate and obstructionist,” predicted one GOP strategist who requested anonymity when discussing White House thinking. “This is not a fight that we fear.”