The perfect nominee

By David G. Leitch 
web posted July 25, 2005

President George W. Bush’s nomination of Judge John G. Roberts to serve as an associate justice of the Supreme Court of the United States demonstrates yet again the president’s commitment to securing excellence and sobriety in the federal judiciary.  It is a nomination deserving of high praise. 

A native of Buffalo, NY, Judge Roberts received both his B.A. and his law degree from Harvard.  Shortly thereafter he clerked for associate justice William Rehnquist.  Roberts’s distinguished career found him serving as Special Assistant to the Attorney General of the United States, Associate Counsel to President Reagan, and Principal Deputy Solicitor General.  Along the way, he became the leading Supreme Court advocate of his generation, arguing 39 cases before the Court.  In 2001, President Bush nominated Judge Roberts to the U.S. Court of Appeals for the District of Columbia Circuit – a post to which he was unanimously confirmed by a Senate voice vote.

Taken as a whole, Judge Roberts’s career has reflected the very model of judicial temperament; he rarely, if ever, resorts to strident rhetoric or argument but instead is a measured and careful legal craftsman.  He is widely respected in the bar, among lawyers of all political persuasions.  His record shows a clear respect for the separation of powers embodied in the Constitution and demonstrates that he is impartial in his application of the law.  In short, John Roberts is the type of person who is sorely needed in today’s Washington; someone who can bring decorum and decency back to the judicial system, which has unfortunately been the subject of considerable acrimony over the past several years.

Of course, that’s not to say Judge Roberts will escape opposition from some Democrats on Capitol Hill.  But let’s be clear; that opposition was manufactured long before Roberts’s nomination.  Indeed, it was manufactured long before there was a vacancy on the court for Roberts to fill. 

For example, People for the American Way boasted in early June of having set up a “war room” where 185 liberal activist organizations would work night and day to thwart the President’s nominee.  Additionally, according to the Boston Herald, the Alliance for Justice was coordinating opposition research on Judge Roberts with staff members from the office of Senator Ted Kennedy (D-MA) even before the current vacancy was announced.  In short, the political Left is prepared for war.

If Judge Roberts’s appointment to the DC Circuit Court of Appeals was any predictor, liberal criticism will center on three broad issues: abortion (the omnipresent issue when these matters are discussed), the environment, and which current Judge Roberts would be most “like” if his nomination is confirmed.

Liberals will contend that Judge Roberts is pro-life, which they see as a priori evidence that he is undeserving of a seat on the Supreme Court.  The evidence is pretty thin.  When he served in the Solicitor General’s office, Roberts drafted a brief in the Rust v. Sullivan case which argued that federal regulations prohibiting funding recipients from counseling patients on abortion were not unlawful.  The Supreme Court agreed with that position.  The brief also mentioned the Administration’s well known position that Roe v. Wade was wrongly decided.  But this brief is scant evidence of Roberts’s personal views; he was simply representing the longstanding position of his client.  In short, in this particular example, as in many others, John Roberts was doing what good lawyers do – represent the interests of their clients. 

During his D.C. Circuit confirmation hearing, Judge Roberts was accused by left wing activist groups of being hostile to the environment.  Opponents will again state that Roberts’s successful 1992 argument on behalf of the government in Lujan v. Defenders of Wildlife indicates a callous disregard for the environment. But this would be misleading.  In Lujan, the Court again accepted his argument, and applied existing standing doctrines that required plaintiffs to demonstrate an injury-in-fact that was not apparent in the record before the Court.

And finally, liberal groups will argue that Judge Roberts is “too much like” associate justices Clarence Thomas and Antonin Scalia.  But this, too, is misleading.  In fact, some conservatives are concerned that Judge Roberts is too much of an unknown – “another Souter.”  The very fact that Judge Roberts’s ideology is difficult for these groups to pin down should be proof enough that this is a nominee who cares more about the law than about politics.  That’s exactly the kind of nominee most Americans will embrace for the highest Court in the land.  Rather than attempt to pigeon-hole John Roberts as being in the mold of one Justice or another, the Senate should recognize him as a first rate individual and an outstanding nominee.  He should be quickly confirmed.

David G. Leitch, General Counsel, Senior Vice President Ford Motor Company, long-time friend and Department of Justice colleague of Roberts.