July 20, 2005
In Pursuit of Conservative Stamp, President Nominates Roberts
By TODD S. PURDUM
WASHINGTON, July 19 – President Bush nominated John G. Roberts, a federal appeals court judge with a distinguished résumé and a conservative but enigmatic record, as his first appointment to the Supreme Court on Tuesday night, moving to replace Justice Sandra Day O’Connor with a candidate he hopes will be hailed by the right and accepted by the left.
“He has the qualities that Americans expect in a judge: experience, wisdom, fairness and civility,” Mr. Bush said in an unusual televised appearance from the White House Cross Hall just after 9 p.m., as Mr. Roberts and his family looked on.
He added, “I believe that Democrats and Republicans alike will see the strong qualifications of this fine judge.”
Mr. Bush’s dramatic prime-time announcement ended more than two weeks of speculation set off by Justice O’Connor’s surprise retirement announcement, and a day of frantic rumors in which first one then another candidate was reported to be the leading choice, amid hints from some Republicans that he might choose a woman to succeed the Supreme Court’s first female justice.
Instead, word came shortly before 8 p.m. that Mr. Bush’s choice was Judge Roberts, 50, a summa cum laude graduate of Harvard College, former managing editor of the Harvard Law Review and clerk to William H. Rehnquist, who was then an associate justice on the Supreme Court. Since 2003, Judge Roberts has served on the United States Court of Appeals for the District of Columbia Circuit, to which he was confirmed by unanimous consent of the Senate.
Mr. Bush has made no secret of his desire to impose a more conservative stamp on the Supreme Court, and he apparently named Mr. Roberts with confidence that he would help him do so.
Almost instantly, the conservative and liberal interest groups that have spent years preparing for a Supreme Court vacancy swung into action.
The conservative Progress for America called Judge Roberts a “terrific nominee,” while Naral Pro-Choice America denounced him as an “unsuitable choice,” and a “divisive nominee with a record of seeking to impose a political agenda on the courts.”
But significantly, Senator Harry Reid of Nevada, the Democratic leader of the body that will determine Judge Roberts’s fate, was much more subdued, hewing to the Democrats’ stated strategy of demanding a thorough vetting of any nominee by describing Judge Roberts as “someone with suitable legal credentials,” whose record must now be examined “to determine if he has a demonstrated commitment to the core American values of freedom, equality and fairness.”
In his campaign for the presidency five years ago, Mr. Bush pledged to appoint judges like Justices Antonin Scalia and Clarence Thomas, staunch conservatives with well-established judicial philosophies.
While Judge Roberts has impeccable Republican credentials and a record of service in the Reagan and first Bush administrations dating to 1981, his paper trail of opinions is comparatively thin, and he is not seen as a “movement conservative.”
Justice O’Connor had long ago emerged as the fulcrum of the current court, a pivotal vote on abortion, affirmative action, the death penalty and religion. Judge Roberts’s detailed views on many of those issues are less known.
Abortion rights groups fault him for arguing, as deputy solicitor general for the first Bush administration in 1990, in favor of a government regulation banning abortion-related counseling in federally financed family planning programs.
He also helped write a brief then that restated the administration’s opposition to Roe v. Wade, the 1973 Supreme Court decision that established the constitutional right to abortion, contending, “We continue to believe that Roe was wrongly decided and should be overruled.”
But when pressed in his 2003 confirmation hearings for his own views, he said: “Roe v. Wade is the settled law of the land,” and added, “There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”
Such comments have made Judge Roberts somewhat suspect in the eyes of some social conservatives. But he arouses nothing like the opposition that conservatives leveled at another potential nominee, Attorney General Alberto R. Gonzales, whose views on abortion are more uncertain.
Tony Perkins, president of the Family Research Council, one of the most vocal socially conservative groups that have been girding for a confirmation fight, issued a statement declaring that Mr. Bush had chosen “an exceptionally well-qualified and impartial nominee,” and adding, “I believe that Judge Roberts will strictly interpret the Constitution and not legislate from the bench.”
By the same token, Judge Roberts will be more difficult for Democrats to attack than his friend and fellow appellate court judge, J. Michael Luttig, who was considered more conservative and had also been among those mentioned for the job.
In his own remarks on Tuesday night, Judge Roberts offered no substantive comments, but told how he “always got a lump in my throat” when he appeared before the Supreme Court as a lawyer, and said “I would not be standing here today if it were not for the sacrifice and help” of his parents, sisters and wife.
Appearing on television just after the announcement, Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, which two years ago approved Mr. Roberts’s nomination on a vote of 16 to 3, said he envisioned full and exhaustive hearings, adding that he did not expect “any issues that go to the qualifications” of a justice to be off limits.
Given Judge Roberts’s age, there is every reason to think he could serve on the court for decades, or even become chief justice, a fact that Democrats emphasized in pledging a thorough review of his record.
Senator Charles E. Schumer of New York, another influential Democrat on the panel, said there was “no question that Judge Roberts has outstanding legal credentials” and an appropriate judicial temperament. Still, Mr. Schumer recalled, he had voted against confirming Judge Roberts to his current post because in response to a question, he refused to cite three Supreme Court cases that he considered to have been wrongly decided.
Mr. Schumer said “the burden is on a nominee” to prove that he is worthy of confirmation, and said that despite past Senate support for Judge Roberts, “it’s a whole new ballgame.”
Representatives of both parties suggested that they expected confirmation hearings to occur in late August or early September, allowing ample time for both sides to review Judge Roberts’s record. Because he was so recently confirmed to his current job, the official F.B.I. investigation of his background, financial interests and the like can be expected to be less burdensome than for a nominee who had never undergone such scrutiny.
Mr. Bush repeated his wish to have Justice O’Connor’s successor confirmed by the time the Supreme Court begins its next term on the first Monday in October, and went out of his way to emphasize the past bipartisan support for Judge Roberts.
The president noted that more than 150 Republican and Democratic lawyers, including top White House and Justice Department officials of both parties, had supported his confirmation two years ago.
“So I have full confidence that the Senate will rise to the occasion and act promptly on this nomination,” Mr. Bush said.
White House aides said that Mr. Bush, whose aides have spent years preparing for a potential vacancy, had reviewed a list of 11 candidates and interviewed 5 of them, before offering the job to Judge Roberts during a telephone call at lunchtime on Tuesday.
Judge Roberts was clearly among the less provocative picks Mr. Bush could have made, a reality that some senior Democratic Senate aides acknowledged Tuesday.
That did not stop Democratic Party officials from circulating a three-page set of talking points after the announcement, branding Judge Roberts as a “Friend to Big Business, the Mining Industry and Ken Starr,” the former Whitewater special prosecutor whom Mr. Roberts served as principal deputy solicitor general in the first Bush administration, helping to draft the government’s positions before the Supreme Court.
The Democratic talking points also described Mr. Roberts as “a longtime Republican partisan,” and that is indisputable.
After serving as a law clerk to Justice Rehnquist, he began his public career in the Reagan administration as an aide to Attorney General William French Smith from 1981 to 1982, and then as an associate White House counsel. He practiced law at the firm of Hogan & Hartson from 1986 to 1989, and again from 1993 until he took his current post.
Mr. Bush’s father first nominated him to the District of Columbia appeals court, considered the nation’s second most important bench, in 1992, but his nomination died in a Democratic-controlled Senate without a vote.
Born in Buffalo, Mr. Roberts grew up mostly in Indiana, was captain of his high school football team and helped earn college tuition by working summers in a steel mill, details that Mr. Bush took some pains to highlight in his announcement.
Before clerking for Justice Rehnquist, he clerked for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit in New York, who was widely considered to be among the most distinguished appellate judges of his era.
Judge Roberts is widely regarded as personable, no small consideration for a president who has said he wanted to take the personal measure of any nominee to the court. Friends, colleagues and adversaries dating to his college days have described the judge as always bright without being overbearing or overly aggressive.
The bipartisan lawyers’ letter supporting his nomination to his current job described him as “one of the very best and most highly respected appellate lawyers in the nation, with a deserved reputation as a brilliant writer and oral advocate,” and added, “He is also a wonderful professional colleague both because of his enormous skills and because of his unquestioned integrity and fair-mindedness.”
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