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Bush Leans Right in Court Pick

Times Staff Writers

President Bush on Tuesday named John G. Roberts Jr., a federal appellate judge, as his choice to fill the Supreme Court seat being vacated by Justice Sandra Day O’Connor, in a nomination expected to bolster the court’s conservative faction if accepted by the Senate.

Roberts, 50, argued conservative positions on abortion and other issues before the high court during his years as a lawyer for Republican administrations, but his two years of service on the U.S. Court of Appeals for the District of Columbia Circuit have provided him with a limited judicial record.

“He has a good heart,” Bush said in a prime-time announcement from the East Room of the White House. “He has the qualities Americans expect in a judge: experience, wisdom, fairness and civility.... He will strictly apply the Constitution and laws, not legislate from the bench.”

Roberts, who stood at Bush’s side, has argued 39 cases before the Supreme Court, an experience that he said had left him with a “deep regard” for the court. “I always got a lump in my throat when I walked up those marble steps to argue a case before the court, and I don’t think it was just from the nerves,” Roberts said.

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In addition to his law practice and judicial experience, Roberts once worked as a clerk for Chief Justice William H. Rehnquist, as associate White House counsel for President Reagan and as principal deputy solicitor general under Kenneth W. Starr, who later became Whitewater prosecutor during President Clinton’s terms. In introducing Roberts, Bush mentioned Rehnquist and Reagan by name, but not Starr.

O’Connor was a swing vote on abortion and other issues before the court, so Bush’s selection to succeed her has the potential to set off a contentious confirmation process and intensify an already noisy debate between conservative and liberal advocacy groups. That debate began immediately Tuesday, with conservatives cheering Roberts’ nomination and abortion rights and liberal groups announcing they could not support him.

Less than half an hour after Bush announced Roberts’ nomination, for example, NARAL Pro-Choice America denounced him as “an unsuitable choice” and vowed to fight his confirmation.

But it remained unclear how divisive the fight would be in Congress, and whether Senate Democrats would attempt to block the nomination through a filibuster. Such a move would surely ignite a bitter partisan battle.

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On Tuesday, no Senate Democrats rejected Roberts outright, and most said they would withhold judgment until they knew more about his judicial philosophy. But they expressed disappointment that Bush had not chosen a more moderate candidate, and they promised to subject Roberts to close scrutiny as the confirmation process proceeded.

“It is vital that Judge Roberts answer a wide range of questions openly, honestly and fully in the coming months,” said Sen. Charles E. Schumer (D-N.Y.), a member of the Judiciary Committee.

Confirmation hearings could begin as soon as the final week of August.

If confirmed, Roberts appears likely to expand the court’s conservative wing, anchored by Rehnquist. Although Roberts’ judicial track record is limited, he is regarded as more conservative than O’Connor.

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Born in Buffalo, N.Y., and raised in Indiana, Roberts built a distinguished resume as a young man. He captained his high school football team, worked in a steel mill to help pay his way through college and graduated with honors from Harvard Law School.

He went on to build a reputation for displaying a brilliant legal mind and a conservative bent. Bush on Tuesday called him “one of the most distinguished and talented attorneys in America,” an assessment broadly shared in the legal community.

One focal point in the debate over Roberts is likely to be a brief he wrote in 1990 as deputy solicitor general: “We continue to believe that Roe [vs. Wade] was wrongly decided and should be overruled.... The Court’s conclusion in Roe that there is a fundamental right to an abortion ... finds no support in the text, structure, or history of the Constitution.” Roe vs. Wade is the 1973 decision that established a constitutional right to abortion.

NARAL Pro-Choice America called those comments a “lowlight” of Roberts’ career and a reason to oppose his nomination. It seems unlikely, however, that his appointment would by itself create a new majority favoring reversal of the landmark Roe ruling -- which appears to have the support of six justices, including O’Connor.

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Roberts once urged the Supreme Court to rule that public schools could sponsor prayer at graduation ceremonies. The American Civil Liberties Union on Tuesday expressed “deep concern” that Roberts, while serving as principal deputy solicitor general from 1989 to 1993, had backed the criminalization of flag-burning as a form of political protest.

In taking these positions, Roberts was acting as a lawyer for the government; it is unclear whether his arguments reflected his own views.

As a judge, he has been sympathetic to arguments that wildlife regulations were unconstitutional as applied to a California construction project. He joined in a ruling upholding police trunk searches even when officers did not assert evidence of a crime, and in another that said police did not violate the constitutional rights of a 12-year-old girl who was arrested, handcuffed and detained for eating a French fry inside a train station.

Last week, Roberts was part of a three-judge panel that issued a ruling allowing the Pentagon to proceed with plans to use military tribunals to try terrorism detainees held at Guantanamo Bay, Cuba.

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Bush “said he would nominate a justice along the lines of [Clarence] Thomas and [Antonin] Scalia,” said Tony Perkins, head of the conservative Family Research Council. “The indication of his past opinions is that Judge Roberts is of that judicial mold.”

Washington lawyer Thomas Goldstein, who has argued several cases before the Supreme Court and knows Roberts, said Roberts was so persuasive that he was likely to sway his colleagues in deliberations. The selection shows that “the president didn’t just want a vote,” Goldstein said. “He wanted someone who could bring along the rest of the court, both by dint of his personality and credibility.”

“He could really move the court,” Goldstein said. “That is the judgment they made. They picked the smartest guy and the guy best able to persuade, because he is open, accessible and incredibly well-respected. The people he will be joining have more respect for him than any other lawyer in the country. He was the man when it came to litigating Supreme Court cases.”

Roberts has also earned respect from some who disagree with his outlook. Alan Morrison, a liberal Stanford law professor, said, “There will not be the slightest question that by intellectual ability and experience he is qualified to be on the court.

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“He is a conservative person in his demeanor -- very straight, reserved. He has a very unflamboyant personality,” said Morrison, who was for many years the chief appellate lawyer for Ralph Nader’s Public Citizen organization and has been in cases in which he was opposed to Roberts, as well as cases in which he was on the same side.

In an interview on the Fox network, Starr, who was Roberts’ boss at the solicitor general’s office and is now dean of Pepperdine Law School, said of Roberts: “He is civil, kind -- a heartland kind of guy ... a traditional conservative.”

In choosing Roberts for a job in which some have served beyond age 80, Bush could leave an imprint on U.S. law, politics and culture well after the end of his presidency. Supreme Court justices receive lifetime appointments, and the court lineup has remained unchanged for 11 years.

The president did not take the opportunity to replace O’Connor with another woman or nominate the court’s first Latino justice. Bush seriously considered 11 people for the court and interviewed five, aides said, and ultimately passed over Atty. Gen. Alberto R. Gonzales, a Latino; former Deputy Atty. Gen. Larry D. Thompson, who is African American, and at least two female appeals court judges.

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Bush will probably have at least one more opportunity to influence the direction of the court before the end of his presidency. Although Rehnquist said last week that he intended to stay on the court as long as his health permitted, few court observers expect the 80-year-old jurist, who is battling thyroid cancer, to remain on the bench for long.

As part of his vetting process, Bush interviewed Roberts on Friday in the sitting area of the executive residence, with the president’s two Scottish terriers at their feet. Bush asked Roberts about his professional experience, family and upbringing, then showed him around the rest of his private quarters in the White House.

Aides said that three nights later, Bush decided that Roberts was his choice.

Bush discussed his decision with Vice President Dick Cheney and other advisors Tuesday morning. Stepping away from a private lunch with Australian Prime Minister John Howard, he called Roberts about 12:35 p.m. to ask if he would accept.

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“I just offered the job to a great, smart 50-year-old lawyer who agreed to sit on the bench,” Bush said when he returned to his lunch guests, according to a White House aide.

Times staff writers Henry Weinstein in Los Angeles and Peter Wallsten, David G. Savage and Richard A. Serrano in Washington contributed to this report. Associated Press was also used in compiling this report.

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(BEGIN TEXT OF INFOBOX)

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Recent opinions by Judge Roberts

Judge John G. Roberts Jr. of the U.S. Court of Appeals for the District of Columbia Circuit has a reputation as a strong conservative. He served in the administrations of presidents Reagan and George H.W. Bush before his appointment as a federal judge a little more than two years ago. Some of his notable court opinions:

Abortion

As a lawyer in the first Bush administration, Roberts co-wrote a brief that stated, “We continue to believe that Roe was wrongly decided and should be overruled.”

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During his 2003 appeals court confirmation hearing, Roberts said: “Roe vs. Wade is the settled law of the land.... There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”

4th and 5th amendments

Roberts upheld the arrest of a 12-year-old girl for eating a French fry in a Washington Metrorail station. (Hedgepeth vs. Washington Metropolitan Area Transit Authority, 2004)

Endangered species

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Roberts asked the court to reconsider protection of the arroyo toad under the Endangered Species Act, arguing that there was no interstate commerce rationale for protecting a species that lives only in California. (Rancho Viejo vs. Norton, 2003)

Search and seizure

Roberts rejected challenges to a bank robbery conviction, upholding a warrantless search of the defendant’s car. (U.S. vs. Lawson, 2005)

Sources: Associated Press, Justice Department Office of Legal Policy, Law.com, Supreme Court Nomination Blog. Graphics reporting by Brady MacDonald

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Los Angeles Times

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Reaching the court

The process of selecting a new Supreme Court justice is, according to the Constitution, the responsibility of the president and the Senate.

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Appointing a justice

Selection: The president selects a nominee for the court, typically from a short list that has been maintained by the White House after candidates’ backgrounds have been checked.

Nomination: The president’s written nomination is sent to the Senate, where it is assigned to the 18-member Judiciary Committee for consideration.

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Short list

President

Senate

Committee

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- Committee hearings:

The committee holds public hearings in which groups and individuals can testify to the qualifications of the nominee. The nominees answer questions from committee members, and the committee votes on whether to recommend him or her to the full Senate.

Public hearing

Debate

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- Floor debate: The nomination traditionally goes to the entire Senate regardless of how the committee votes.

Confirm

- Final vote: After debate, the entire Senate votes; a simple majority confirms the nomination.

Oppose

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- Filibuster: Senators opposed to the nomination may decide to filibuster. In that case, three-fifths of the Senate must vote to end the filibuster and bring the nomination to a vote.

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Nominee

- Investigation:

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The nominee submits information on personal background, affiliations, and financial records. The FBI looks into the nominee’s background.

FBI

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Troubled nominations

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Sometimes a court nomination runs into trouble in the Senate. Some recent cases:

*--* Year President Nominee Position Action 1968 Johnson Abe Fortas Chief justice Withdrawn after filibuster 1968 Johnson Homer Associate Withdrawn justice after Thornberry filibuster 1969 Nixon Clement Associate Rejected, justice 55-45 Haynesworth 1970 Nixon Harold Associate Rejected, Carswell justice 51-45 1987 Reagan Robert Bork Associate Rejected, justice 58-42

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Deliberative process

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Senate hearings for members of the current court have stretched from 10 to 52 days:

*--* Justice President Hearing dates Days William H. Rehnquist Nixon Nov. 3-Dec. 10, 1971 38 John Paul Stevens Ford Dec. 8-17, 1975 10 Sandra Day O’Connor Reagan Sept. 9-21, 1981 13 Antonin Scalia Reagan Aug. 5-Sept. 17, 1986 44 Anthony M. Kennedy Reagan Dec. 14, 1987-Feb. 3, 1988 52 David H. Souter Bush Sept. 13-Oct. 2, 1990 20 Clarence Thomas Bush Sept. 10-Oct. 15, 1991 36 Ruth Bader Ginsburg Clinton July 20-Aug. 3, 1993 15 Stephen G. Breyer Clinton July 12-29, 1994 18

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On the committee

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Republicans outnumber Democrats 10 to 8 in the Senate Judiciary Committee. A look at the members:

Republicans

Chairman Arlen Specter, Pa.

-The moderate Republican has pledged to support Bush nominees. Joined the committee in 1981 and became chairman in January. His support of presidential positions in 2004 was 88%.

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Orrin G. Hatch, Utah

- The chairman for most of President Bush’s first term, he has strongly supported conservative judicial nominees. Joined the committee in 1977. His support of presidential positions in 2004 was 94%.

Charles E. Grassley, Iowa

- He has supported Bush judicial nominees and opposed filibusters. On the committee since 1981; 94% presidential support in ’04.

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Jon Kyl, Arizona

- On the Judiciary Committee since 1995; 100% presidential support in ’04.

Mike DeWine, Ohio

- One of the 14 senators who compromised over use of filibusters. On the committee since 1995; 94% presidential support in ’04.

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Jeff Sessions, Alabama

- On the committee since 1995; 96% presidential support in ’04.

Lindsey Graham, South Carolina

- He also agreed to filibuster compromise. On the committee since 2003; 92% presidential support in ’04.

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John Cornyn, Texas

- On the committee since 2003; 92% presidential support in ’04.

Sam Brownback, Kansas

- An opponent of abortion who has been on the committee since 2001, with a break in 2003-04. 2004 presidential support was 98%.

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Tom Coburn, Oklahoma

- The highly outspoken opponent of abortion began committee service this year.

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Democrats

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Patrick J. Leahy. Vermont; ranking Democrat

- Senator led Democrats through many nomination fights, including opposition to John Ashcroft’s nomination as attorney general. Joined the Judiciary Committee in 1979 and was chairman in 2001-02. He supported 58% of presidential positions in 2004.

Edward M. Kennedy, Mass.

- The committee’s longest-serving member began his tenure in 1963. Has strongly opposed conservative nominees; his 2004 presidential support was 59%.

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Joseph R. Biden Jr., Delaware

- He has been on the committee since 1977 and was chairman from 1987-95, presiding over controversial confirmation hearings of Robert Bork and Clarence Thomas. Supported 70% of presidential positions in 2004.

Herb Kohl, Wisconsin

- Committee member since 1989. Has supported filibusters against Bush appeals court nominees. 2004 presidential support was 66%.

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Dianne Feinstein, California

- Although she supported filibusters of appeals court nominees, she is considered a moderate who came to agreement with Bush over lower court nominees. She joined the committee in 1993 and supported 62% of presidential positions in 2004.

Russell D. Feingold, Wisconsin

- On the committee since 1995; 66% presidential support in ’04.

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Charles E. Schumer, New York

- A leader of the opposition to Bush appeals court nominees. Has been on the committee since 1999; 62% presidential support in ’04.

Richard J. Durbin, Illinois

- Current minority whip has been on the committee since 2001; 62% presidential support in ’04.

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Sources: Associated Press, Senate Historical Office, Senate Judiciary Committee, IndependentJudiciary.com, Congressional Quarterly. Graphics reporting by Tom Reinken

Lorena Iniguez Los Angeles Times


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