Cook On Concord



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Judge John G. Roberts of the Court of Appeals for the District of Columbia, nominated July 19 by President George W. Bush to replace retiring Supreme Court Justice Sandra Day O’Connor, was little known to Americans prior to the announcement. But he immediately became the subject of intense scrutiny among media and politicians trying to figure out who he is and what his addition to the world’s most important court may mean for the future. He also became the object of a political process largely out of his control. Since this nomination is important for the American system of government and the direction of jurisprudence, and because the rhetoric around any confirmation process is pitched and often heated, a few observations about what to expect in the process might be helpful. First, there are usually many comments about whether the nominee is “qualified” to be on the Supreme Court. Roberts went through Harvard College in three years and headed his class at the Harvard Law School, editing the country’s most prestigious law review. After law school, he clerked for the top appeals court judge in the federal system at the time, and then for Justice William Rehnquist of the U.S. Supreme Court. He has served as assistant White House counsel and deputy solicitor general, and in private practice where he headed the appellate practice group at Hogan and Hartson, one of the most prominent American law firms. Frankly, if this isn’t qualified, no lawyer in America is qualified. While there is no unified theme of opposition to his confirmation, there will be a lot of give and take, much of it fueled by a reported $50 million raised to support or oppose a nominee. Among the early criticisms, or potential “concerns,” raised by potential opponents are such things as Roberts’ participation in the Florida recount matter by advising Gov. Jeb Bush, although no one knows what advice he offered.
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So, what are we going to hear from both sides? (Note: if this were a Democratic president naming a presumed liberal justice, the arguments would undoubtedly be reversed.) • Judge Roberts should state clearly his view on issues that will come before the court, especially his view of Roe v. Wade. This argument will be made by those who want to be assured the judge will rule one way or another on particular issues. Democrats will demand answers. Republicans will feign horror at such requests. If he is true to tradition, he will decline to make such comments so as not to prejudice his objectivity of real cases that may come to the court. • Statements written or argued by Roberts in past cases will be given great weight. Lawyers arguing cases try to make the best case for their clients, whether the arguments are consistent with their own beliefs or not, and regardless of how they might rule on the legal issues involved. Notwithstanding this, lines from briefs Roberts authored are already getting great publicity, and commentators are reading all sorts of personal philosophy into them, especially in a case he argued during the first Bush administration concerning abortion rights. This is a particularly useless exercise in predicting future action. That fact won’t keep it from being tried. • Much will be made of requests that the administration release memoranda and other writings Roberts authored while giving advice to his client, the government or president. • The process should be kept “dignified and non-political.” Dignified maybe, but non-political? Not a chance. This process involves 100 senators voting on a lifetime appointment to the Supreme Court, in the face of special interest groups pressuring them. This will be high political drama, and rough at times, no matter how fine the nominee may be.
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Justices decide cases, listen to the arguments of the other eight members of the court, and try to do what is right. Their judicial philosophies evolve and emerge as they serve. This is very different from what partisans do in a legislative body, having run for office on a platform as members of particular parties. This distinction is often lost on observers and legislators alike who disregard the fact that about a third of the decisions of the court are unanimous, sorting out inconsistent decisions from courts of appeal on federal statutes. In the end, John G. Roberts, will be confirmed as a justice of the U.S. Supreme Court, barring some scandalous revelation. Only then will it become clear whether President Bush has appointed someone with the philosophy he says he wants on the court and what kind of justice Mr. Justice Roberts will be during his life tenure. Then the circus will end. By the way, did you hear Chief Justice Rehnquist isn’t well, and there may be another opening on the court? Brad Cook is a partner in the Manchester law firm of Sheehan Phinney Bass + Green and heads its government relations and estate planning groups.

 

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