Judge Roberts and the Confirmation Process

Federal appeals court judge John Roberts is President Bush's pick to replace Justice Sandra Day O'Connor on the Supreme Court. What sort of questions are likely to emerge during confirmation hearings?

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SCOTT SIMON, host:

Here at home, US Supreme Court nominee John Roberts is becoming better known to both sides of the political spectrum and the media. Judge Roberts now sits on the federal Appeals Court in Washington, DC. His Senate confirmation hearings are set to begin after Labor Day. NPR legal affairs correspondent Nina Totenberg joins us.

Nina, thanks for being with us.

NINA TOTENBERG (NPR Legal Affairs Correspondent): My pleasure.

SIMON: And the good news politically for the administration on this nomination is the judge has a limited public record. That presumably gives the Democrats less evidence to use against him if they want in the confirmation process, but does that relatively limited record also have some social conservatives worried?

TOTENBERG: The beauty in naming a guy with almost no paper trail is that there are no speeches, no crusading. He isn't even a member of the conservative Federalist Society. The White House told us that he was but then had to correct information later. In fact, Scott, this lack of a public record was, indeed, enough of a problem for social conservatives that White House allies have been working for some months now inside the conservative movement to persuade people like James Dobson of Focus on the Family that Roberts is really one of them.

SIMON: So will there be any fireworks over this nomination?

TOTENBERG: Well, the fight, if there is one, will come, I think, over documents. After all, John Roberts served in the Reagan Justice Department, then in the Reagan White House and then in the first Bush administration as the so-called political deputy solicitor general, where he wrote briefs urging the reversal of Roe vs. Wade. Now senators are going to want to know more about his activities in all of those jobs: what he wrote, what the tone of it was. Was he just carrying out policy or helping to formulate it? And we already have some hints that even as a 29-year-old aide in the Reagan White House, John Roberts was a pretty aggressive, confident, one might even say cocky advocate of very, very conservative positions.

SIMON: Do you have an example you can give us?

TOTENBERG: Well, the Reagan Library's already made available a few of the memos Roberts wrote as associate counsel. One was written on February 15th, 1984, when Senator Strom Thurmond, who was then chairman of the Senate Judiciary Committee, had proposed an anti-busing bill to bar lower federal courts from ordering busing and to permit the reopening of previously resolved school desegregation cases in order to get rid of busing orders. Now Senator Thurmond asked the administration for its opinion as to whether his bill was constitutional and the assistant attorney general for the Office of Legal Counsel, one Theodore Olson, had concluded that parts of it were not. Olson's opinion said Congress does not have the power to tell the courts that they cannot remedy a constitutional violation like segregated schools if busing is the only remedy that will do the trick. Twenty-nine-year-old John Roberts said simply, `I do not agree.' He said he thought Olson's reading of the Supreme Court case law was wrong.

He's taking on Ted Olson...

SIMON: Yeah.

TOTENBERG: ...who would later argue and win Bush vs. Gore for then-Governor Bush and who would go on to become the chief advocate for this president in the Supreme Court in the first term. Back then Olson was the assistant attorney general, who was supposed to serve as the legal brains for the president, and here was young John Roberts saying, `Sorry. I think you're wrong and I think that Congress does have the power to tell the courts that busing is counterproductive and that they cannot use it.'

SIMON: What happened in that case, by the way?

TOTENBERG: Well, it's a mark of Roberts' savvy that in the end he concluded that it was just too late to change positions and he let sleeping dogs lie. The bottom line here, though, is that there are probably hundreds more memos like this that have not been released and the Democrats are going to want them.

SIMON: NPR legal affairs correspondent Nina Totenberg, thanks very much.

TOTENBERG: Thank you.

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