Roberts' Shepherd Hopes to Lead to the Supreme Court

Published August 21, 2005

| FoxNews.com

As John Roberts (search) wends his way through the Supreme Court confirmation process, a shepherd is guiding him behind the scenes, trying to keep the nominee from going to slaughter.

Former Tennessee Republican Sen. Fred Thompson (search), who now plays District Attorney Arthur Branch on the hit series, "Law and Order," is the public face of President Bush and the nominee as he pushes the president's pick to replace Sandra Day O'Connor on the highest court of the land.

Thompson is being assisted by former Republican National Committee Chairman Ed Gillespie. It is their job to guide Roberts through the often tenuous process that the administration hopes will lead to Roberts' installation on the bench.

"It’s a bit of an arranged marriage here," Mark Gearan, who helped shepherd Justice Stephen Breyer (search) through his confirmation hearings in 1994, said of the relationship between nominee and guide. "Certainly the nominee would have to be comfortable (with the shepherd), I expect. Someone who has the stature and gravitas and standing to represent the president in such a high profile appointment — it's hard to underestimate that."

Thompson was chosen by the president before Roberts, a District of Columbia appeals court judge, was formally nominated to the high court post.

"It's kind of a role that's been defined over the years by various people … it basically is to do what you're asked to do, by the White House, by the nominee, and it usually involves attending meetings with the nominees, briefing the nominee to who the senators are and their background … talking to the senators individually and listening to their concerns or answering questions … and responding to issues as they come up, as the White House would want you to do," Thompson told FOX News after he was named to be the White House liaison.

"And as things develop, areas of concern and so forth, you have to be steeped in the person's background, know all there is to know about the nominee. And you have to be an advocate for the nominee," he said

Sending the Right Player to Bat

Past Supreme Court nominees have usually had some sort of advocate to shepherd them through the confirmation process.

At the time a presidential adviser, Gearan helped prepare Breyer, one of President Clinton's two Supreme Court nominees, for confirmation hearings. Before him, J. Michael Luttig, who then was an assistant attorney general for the Justice Department's Office of Legal Counsel, worked to prepare both Clarence Thomas (search) and David Souter (search) for confirmation. Former Sen. John Danforth of Missouri also shopped Thomas around to key meetings and players. Kenneth Duberstein, a lobbyist and former Reagan administration official, worked on behalf of Thomas and Souter. Former Republican lobbyist Tom Korologos served as an unofficial adviser to many Republicans seeking Senate confirmations for their nominees, including President Reagan's choice of Robert Bork (search) in 1987.

David Yalof, a University of Connecticut political science professor and author of "Pursuit of Justice: Presidential Politics and the Selection of Supreme Court Nominees," said the work of Danforth and others was less obvious than what Thompson is now doing.

"That was very much behind the scenes. While they may have helped escort the individuals to various places, what we see now in Thompson, and probably will see in all Supreme Court nominees to come … [is] a figure who senators from both parties have respect for, to become the public face of this nomination," Yalof said. "It becomes the perfect individual to go on 'Meet the Press' because the nominee can't."

As a former senator, Thompson is familiar with the ins-and-outs of Capitol Hill, is close with many senators who may be part of the firing squad set to pepper Roberts with questions, and he knows how to use political finesse when needed.

Thompson "absolutely" makes sense as an adviser, said Don Stewart, spokesman for Sen. John Cornyn (search), R-Texas, who is a member of the Senate Judiciary Committee. "You wouldn't put a baseball player into the football game — it wouldn't make sense."

Thompson's high profile while he was in the Senate doesn't hurt, either, particularly when trying to sell the nominee not only to Republican senators like Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania and Senate Majority Leader Bill Frist, who represented Tennessee alongside Thompson, but also to the committee's ranking Democrat Patrick Leahy of Vermont and Minority Leader Harry Reid of Nevada.

Observers say that status gives Thompson, and therefore Roberts, more access to the "must-meets" in Washington and lends more credibility to the public as a true representative of the White House.

Aside from Thompson, Roberts has another prizefighter in his corner, one who sits inside the Senate.

Cornyn, who served as a Texas Supreme Court justice before coming to Washington, has emerged as a sort of rapid response force for the nominee. Cornyn has added a new lawyer to his staff to research and conduct prep work so the senator can respond to negative claims against Roberts as soon as they surface.

"He is, I guess you can call, a utility player — to step in wherever the leadership or White House needs him on this," said spokesman Stewart. "He likes to say that 'a charge unrebutted is too often a charge believed.' So a lot of what he'll do and what he has been doing is when there's an inaccurate statement put out, he'll respond, with the facts and quickly."

Stirring the Cauldron

Of the 154 nominations to the Supreme Court since 1789, 34 were not confirmed by the Senate, though later five of those candidates did win confirmation on a repeat try. The last rejected nominee was Bork.

Roberts may face some tough questions regarding his stance on abortion, separation of church and state, civil rights, environmental regulations and other topics, but by most accounts he is a fairly non-controversial pick. That could make Thompson's services less critical.

"Because Roberts is a relatively congenial individual, he's apparently well-liked, he handles himself well. I think while Thompson helps, he's probably less fundamentally necessary whereas I think in the case of Thomas, who was considered controversial from the moment of his nomination, or Souter — who was a complete unknown in Washington, D.C. — those two individuals probably benefited more from someone who was familiar with the process and who could shepherd them through," Yalof said.

Nonetheless, the hearings, scheduled to begin Sept. 6 before the Senate Judiciary Committee, are not expected to be any walk in the park.

"It's like asking for the recipe for chicken à la king from the chicken," Justice Breyer said recently of the confirmation process.

Roberts continues to meet with lawmakers during the August recess, even though most senators are back in their home states. During the lull, Thompson is likely putting Roberts through multiple question-and-answer sessions and following up on any issues that senators brought up during their face-to-face meetings with Roberts.

"I suspect it's like they would prepare the president before a press conference — a list of questions and answers that would be anticipated and key areas of inquiry and refining those areas and those answers," Gearan, who is now president of Hobart and William Smith Colleges in Geneva, N.Y., told FOXNews.com. "I would think there would be a great deal of diligence."

Even though some observers may say Washington is more political than ever with all the partisan bickering, Supreme Court nominees are a lightning rod for any Congress. After 11 years of wondering which Supreme Court justice will be the first to die or retire, this chance to fill this vacancy has been built up for years and will undoubtedly touch on some hot button issues. The televised confirmation hearings may just bring about some surprises.

"You never quite know the drama of the moment … and how a senator or any nominee will react in that kind of setting," Gearan said. "I think this appointment becomes so important to so many people — even if Washington were in the more genteel times. The nature of this appointment … when the stakes are this high for the issues, the politics of it … it's understandable it would get to be like putting everything into a cauldron."

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