Opponents of Nominee Taking Populist Tack

Times Staff Writer

Critics of John G. Roberts Jr. are turning to populist economic arguments to thwart his nomination to the Supreme Court, echoing one of the themes Al Gore used against George W. Bush in the 2000 presidential campaign.

In their first reactions to Roberts, many of the Democrats and liberal groups resisting his selection by President Bush are trying to portray him as a threat to the economic interests of average families. The strategy -- even the language -- is similar to Gore’s effort to frame the 2000 presidential campaign as a choice between “the people” and “the powerful.”

Sen. Edward M. Kennedy (D-Mass.) thundered in his first floor statement on the nomination this week: “Americans deserve to know if nominees will be on the side of justice and individual liberties, or if they will side with powerful special interests.”

This use of populist economic arguments appears partly driven by necessity: Roberts’ record as an attorney and federal judge is much more extensive on economic than social issues, and thus potentially offers more ammunition for critics.


But the strategy also reflects the decision reached by liberal groups, after years of planning for a Supreme Court vacancy, to spotlight bread-and-butter economic issues as much as more emotional social concerns, such as gay marriage or abortion.

Ralph G. Neas, president of People for the American Way, a liberal group expected to help lead the fight against Roberts, said polling conducted by his organization found that most Americans would oppose a justice seen as too close to big business.

“If John Roberts is perceived as someone who is not going to protect the rights of ordinary Americans, and will favor corporate interests, there will be a 70% majority against his nomination,” Neas said.

Senior White House strategists and the independent campaigns backing Roberts predict such arguments will not seriously threaten his confirmation, in part because they maintain his record is too complex to support the portrayal. They also believe Bush’s two presidential victories, especially his win over Gore, have shown the limits of a class-based populist message.


“A reprise of the Al Gore campaign projected onto the Supreme Court nominee five years later is just not an effective strategy,” said one GOP strategist who spoke on condition of anonymity when discussing White House plans for the confirmation fight.

Roberts’ supporters see another hurdle for the case critics are building: His views on business and regulatory issues closely track those of Sandra Day O’Connor, who many Democrats have lauded since she announced her retirement.

“It is ironic that Democrats are praising O’Connor while now trying to paint Roberts as too ‘pro-business,’ when that is the one area of the law where there probably is complete overlap between them,” said C. Boyden Gray, chairman of the Committee for Justice, a coalition supporting Bush’s judicial appointments. “If O’Connor is acceptable to Democrats, Roberts certainly should be, at least with respect to the commercial issues.”

Still, such criticism began within hours of Bush’s announcement Tuesday of Roberts’ nomination.


Eli Pariser, executive director of the political action committee associated with the liberal advocacy group, issued a news release that in its first sentence described Roberts as a “right-wing corporate lawyer.”

Formerly in private practice, Roberts now serves as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

Kennedy, a likely leader of Senate opponents of Roberts, did not mention abortion until the end of his floor statement Wednesday.

Instead, he noted that the next Supreme Court Justice could significantly affect American’s lives on issues such as worker rights, civil rights, retirement security, environmental protection, corporate accountability and access to healthcare.


Echoing a populist phrase from the 1930s, Kennedy said the central issue in the upcoming debate would be “whose side John Roberts would be on” -- whether he would represent average Americans or “powerful special interests.”

Equally telling was the reaction of Sen. Charles E. Schumer (D-N.Y.), another likely Roberts’ opponent, at a news conference Wednesday.

The first questioner asked Schumer whether he was anxious for Roberts to clarify his position on the right to abortion. Schumer replied that abortion was “hardly the only question.”

He said that for him, “the No. 1 issue” was whether Roberts’ views on the Constitution’s commerce clause would lead him to retrench federal regulations aimed at protecting workers and consumers or safeguarding the environment.


The commerce clause provides the federal government with the authority to regulate interstate commerce.

Another senior GOP strategist familiar with White House thinking about the nomination said he believed these economic-focused remarks from critics were not “an accident,” but instead part of a shift in the Democratic message since Bush’s reelection in November.

With polls finding that Bush romped over the Democratic nominee, Sen. John F. Kerry of Massachusetts, among voters who attended church most often, many Democrats urged the party to play down social issues and highlight populist economics in an effort to recapture more culturally conservative blue-collar voters.

“This is ... a recognition [by Robert’s opponents] that, ‘We can’t make this about abortion because that undermines us with people of faith,’ ” said the GOP strategist who spoke on condition of anonymity. Instead, they have “got to make it about, ‘Are you on the side of little guys versus big corporate interests?’ ”


Liberals deny they are reluctant to highlight the abortion issue, and note that recent surveys show that most Americans want the next justice to uphold Roe vs. Wade, the 1973 decision legalizing access to the procedure.

Rather, Pariser and Neas said they were trying to assemble a broader argument against Roberts because they wanted to show that tilting the court right would directly affect millions of Americans beyond those deeply concerned about abortion and other social issues.

One senior Senate Democratic aide maintained that although Bush survived Gore’s populist criticism in 2000, such arguments might prove more potent now because polls showed the president’s record had deepened suspicions that he favored business interests and the wealthy over average families.

Regardless of the outcome, Democrats believe they can use the Roberts nomination fight to further stamp that image on the GOP -- and claim the opposite for themselves, said the aide, who spoke on condition of anonymity when discussing the strategy.


“We are going to use that megaphone [of the Roberts’ confirmation debate] to push out what we stand for, what we are fighting for,” the aide said. This strategy frames the obvious question: Can critics make their portrait of Roberts stick?

Liberal groups are focusing on two aspects of Roberts’ career. One is his advocacy, as a private attorney, for a number of major corporate clients. These include Toyota, which he defended against a claim under the Americans with Disabilities Act, and the National Mining Assn., which he represented in a suit brought against certain strip-mining techniques.

Critics are also likely to center their argument on one of Roberts’ opinions as a judge.

The case, Rancho Viejo LLC vs. Norton, involved a California developer’s challenge to the Endangered Species Act.


Roberts expressed doubts about the act that signaled he held views similar to the conservative majority on the Supreme Court, which for the last decade had interpreted the commerce clause in ways that limited the federal government’s regulatory ability.

Citing that ruling, the liberal Alliance for Justice charged that his views on the commerce clause “might threaten to undermine a wide swath of federal protections, including many environmental, civil rights, workplace and criminal laws.”

Roberts’ defenders acknowledge his close relations with the business community, but contend his record doesn’t support the effort to depict him as simply an ally of big corporations.

Anthony Sabino, a law professor at St. John’s University’s Peter J. Tobin College of Business in New York, said Roberts had demonstrated a respect for precedent that made it unlikely he would seek to broadly retrench federal authority, as critics had claimed.


“He realizes the so-called ‘rolling back’ of precedent is bad for America,” said Sabino.