In a political climate where everyone dreads surprises, few people want to wait until Judge John G. Roberts (search) jumps out of a giant cake in the Supreme Court building to see what they're really getting.
Roberts' confirmation has been all but declared a done deal. The 50-year-old's gleaming resume, reputation for brilliance, clean-shaven good looks, excessive modesty and genuine affability have effectively handcuffed all but the most extreme liberals from assailing his qualifications.
Despite demands for documents the Bush administration has declared off-limits, leading Democrats have nearly conceded that, barring a bombshell revelation, Roberts will be sitting in retiring Justice Sandra Day O'Connor's (search) place this fall, and possibly even on the court's Oct. 3 opening day for the 2005-2006 session.
The Harvard law graduate and former clerk to Chief Justice William H. Rehnquist (search) is considered a reliable conservative, and to the right of O'Connor, the court's longtime swing vote. He is expected to shore up the conservative bloc of the court, comprising Rehnquist and Justices Antonin Scalia, Clarence Thomas and, on occasion, Anthony Kennedy.
In visits with Senate leaders, Roberts has promised he will not be an activist on the court. And from the documents that have been released and his responses to Senate Judiciary Committee questions, few flags suggest he is a radical in sheep's clothing.
"The exceptional thing with this nomination so far is it was preceded by a bang and has ended up something of a whimper," said John Cioffi, a political science professor at the University of California at Riverside. "Everyone was ready for nuclear warfare in the Senate. This was expected to be one of the bloodiest political battles in a generation."
Instead, Roberts' squeaky-clean resume has fueled speculation that President Bush tapped him with the purpose of pushing CIA name leaker Karl Rove out of the headlines. Some editorialists and pundits have wondered whether Bush felt a need to forego a nominee who mimicked the president's ideology in exchange for relief from the hot seat.
But court watchers say that while Roberts may not be as strident a constructionist as Scalia or Thomas, it is unlikely Bush would nominate someone whose beliefs differed significantly from his own.
"While Judge Roberts is not widely known among the public, it's reasonably clear that the White House is pretty confident it knows what his views are and has some basis and evidence" to that effect, said Georgetown University law professor Mark Tushnet.
Indeed, Roberts did go through a seemingly thorough vetting process, according to his response to committee questions. Roberts said he was first interviewed for the court by Attorney General Alberto Gonzales on April 1, three months before O'Connor's retirement was announced. On May 3, he was interviewed by a larger group headed by Vice President Dick Cheney.
After several more talks, he sat down with Bush on July 15. The president offered him the nomination four days later.
If recent history is any kind of guide, however, Roberts could follow in the path of other confirmed conservative justices, who once they reach the top court appear to shift to the left, at least more often than the other way around. That said, while Bush's religious conservative supporters extol Roberts' many virtues, it's safe to say many would have preferred a nominee whose opinions are better known.
"I think the social conservatives would have been delighted to get into a brass-knuckles fight with the Democrats in the Senate," Cioffi told FOXNews.com. "Christian conservatives really did feel they were owed a nominee, and it's quite clear Roberts is not in that camp. They haven't gotten a tremendous amount out of the Bush administration other than lip service."
What Keeps Conservatives Up at Night
It will not be a surprise if Roberts emerges from the confirmation process with relatively few nicks and scrapes. In that respect, his nomination is arguably one of the shrewdest moves of Bush's presidency.
On the other hand, it is unlikely Americans will know much more about him after the Senate hearings than they do now. Roberts spent most of his career as an attorney arguing on behalf of the government or private clients. He has never taught, and as a result has rarely articulated his own views on the law. He has been a judge on the D.C. Circuit Court of Appeals for only two years, and the guidelines that bound him to defer to the Supreme Court while on the lower court bench will no longer apply should he become a justice.
Women's rights groups and civil libertarians have expressed concerns over briefs and opinions Roberts has written on Roe v. Wade (search) and presidential power in the age of terrorism. Some conservatives say they fear all that fretting may be for naught. They point to the unnecessary hand-wringing by the left when President George H.W. Bush nominated Justice David Souter.
Souter, like Roberts, was considered a "stealth" nomination. Mindful of the embarassment of failed Reagan nominees Robert Bork and Douglas Ginsburg and wanting to avoid controversy in an election year, Bush tapped Souter after what he described as an impressive interview. The New Hampshire native was presented to conservatives with the approval of White House Chief of Staff John Sununu and Sen. Warren Rudman, R-N.H.
Souter had been a judge on the U.S. Court of Appeals for the First Circuit for just a few months. Like Roberts, he had worked primarily for the government, in his case at the New Hampshire attorney general's office. Unlike Roberts, he had served as a judge on lower courts for more than 10 years.
Not long after he was confirmed to the Supreme Court, Souter proved to be a grave disappointment to conservatives. He has consistently sided with moderate to liberal positions on abortion, gay rights, habeas corpus and separation of church and state. In 2000, he dissented in the Bush v. Gore ruling that handed the presidency to the Republican. Feeling betrayed, some Bush '41 administration officials have gone so far as to say he deceived them to get the job.
Those who know Souter say that is highly unlikely. He is well-liked among the justices, including the combative Scalia, and is praised for his intellect and wit. The more plausible scenario is that Souter himself did not know what kind of justice he would end up becoming.
"Part of the explanation is the job always turns out to be different than what you thought it might be. Issues come up that you hadn't thought about, and you have to start from the beginning," Tushnet told FOXNews.com.
Justice Kennedy, notable for his last-minute reversals that flipped the outcomes of closely watched cases, could also be described by some conservatives as a letdown.
Kennedy initially voted with the court's conservatives and in line with what he thought were his beliefs in 1992's Lee v. Weisman, involving prayer in public schools, and 1992's Planned Parenthood v. Casey, widely regarded as the court's affirmation of Roe. Both were 5-4 decisions in which Kennedy was the swing vote.
In Lee, Kennedy was assigned to write the majority opinion by Rehnquist. Only after explaining in a draft why the prayers were constitutional, did he realize he did not believe they were. He then sent a note to Rehnquist saying, "My draft looked quite wrong," and switched sides.
Is Pre-Judgment Pointless?
Maintaining the integrity of the court and realizing its power to impact millions of lives and the future of American law weighs on many high court justices' decision-making as few lower court decisions do.
"If you overrule a prior court decision, you're basically saying [to the court], 'You blew it,'" said Dennis J. Hutchinson of the University of Chicago's law school. "Too much discussion on the role of the court is cast in very simplistic terms, whereas the court is very complex. What looks like an issue that should go one way, given the particular facts of the case, may not need to go that way."
In other words, if Roberts is in awe of the institution as much he says he is, it is highly unlikely he will join the bench armed with scorn for court precedent. Moreover, judges are often forced to rule contrary to their own personal beliefs.
As Kennedy has shown, the tendency to scrutinize issues on a case-by-case basis in deference to the facts is a more plausible explanation for a move from the right to the center than a drastic change in their personal beliefs.
However, if Roberts does turn out to be more of an originalist, and does not see a fundamental right to privacy in the U.S. Constitution, the crux of the argument used to validate Roe v. Wade, millions of women could feel his impact on the court in a very personal way.
Likely for that reason, a recent AP/Ipsos poll found that a majority of Americans said they believe Roberts should state his position on abortion before the Senate votes on his nomination. Most legal and political observers agree he has no obligation to do so.
Roberts will probably invoke the "judicial Fifth" and decline to answer pointed questions in order to avoid future conflicts of interest. But the temptation to turn the confirmation hearings into a festival of rhetoric may be too strong for some lawmakers to resist. Meanwhile, many legal scholars question why a nominee's personal views are relevant at all.
"The problem with congressional hearings is they only really work well when the committee is operating in an oversight function," said Hutchinson, who noted the intense speculation about Roberts' Roe stance is fruitless. "I think it's magnifying the ineptitude of public hearings to vet Supreme Court justices. It is certainly to the benefit of politicians and to interest groups on both sides — they raise money and legitimize themselves."
Cioffi said that the notion of judicial independence hangs in the balance as judical nominee battles become increasingly partisan.
"It erodes the notion of impartiality and objectivity even further. ... The issues that come before the court are fairly nuanced and complicated, this is one reason you have Supreme Court opinions that go on for 40 or 50 pages," he said. "I fear it would not only tarnish the reputation of the judicial tribunal, but would cause a distortion of what the profession of judging is about."
The level of scrutiny into a nominee's psyche dates back to the court under Chief Justice Earl Warren (search), which oversaw sweeping civil rights decisions that outraged segregationist Southern Democrats. The very process of Senate hearings was created in order to grill nominees on their view of the 1954 landmark decision on Brown v. Board of Education, which abolished school segregation.
Even legal scholars who agree with the spirit of Brown v. Board of Education say it is a prime example of justices legislating from the bench. The resulting misperception that the Supreme Court is a moral guardian for the country may be responsible for the belief that Americans have a right to know a nominee's personal views.
"We don't have that right not even in theory," Hutchinson said. "The right to know somebody's opinions is the sort of right you exercise at the ballot box."
Ironically, Brown is also held as the standard for why judges should not have to reveal their personal beliefs: if the Warren court had responded to the will of the nation on Brown, it would have upheld "separate but equal" schooling for black and white children, a notion that most Americans now find perverse.
Warren is also an example of a justice who veered to the left after joining the court. Eisenhower, who backed civil rights legislation but was a strong believer in states' rights, called nominating Warren "the biggest damn-fool mistake I ever made."
President Bush is almost certainly hoping he will not someday say the same of Roberts.
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