Posted on 07/26/2005 4:26:06 PM PDT by RWR8189
IN THE DAYS BEFORE PRESIDENT Bush picked a Supreme Court nominee, the White House was gripped by Souter-phobia. Bush and his aides desperately wanted to avert the disaster that befell his father's White House in 1990. The elder Bush, on the advice of his chief of staff John Sununu and Senator Warren Rudman of New Hampshire, picked an unknown judge, David Souter, for the Supreme Court, thinking he was a conservative. Souter turned out to be a flaming liberal, so much so that Senator Ted Kennedy now regrets having voted against confirming him. In naming Souter, Bush had passed over another judge he'd interviewed for the job, a real conservative from Texas named Edith Jones. The reason: Confirmation of Souter looked easier and probably was. For conservatives, however, his elevation to the High Court was a mistake for the ages.
Fear of another Souter led George W. Bush to seek the answer to a single question when he interviewed five potential nominees. All five were deemed to be conservatives. The question was whether they'd be the same 25 years from now as they are today--in other words, just as conservative. The interviews lasted from one hour to nearly two. Bush found John Roberts the most impressive. He decided Roberts would not lurch to the left as Souter had or even drift in that direction as other Supreme Court appointees of Republican presidents have. A White House official said Bush doesn't expect Roberts to "grow in office."
Bush advisers studied how the nomination of Souter came about. It wasn't that Souter, who'd served on the New Hampshire Supreme Court and, briefly, as a federal appeals court judge, misled his interrogators on the staff of the elder Bush. The problem was that the White House "didn't ask, 'Are you a conservative, why, or when did you become one?'" an aide to the current president says. "They didn't ask any of those questions." Those questions were asked of Roberts. "I'm glad we had Souter-phobia. If we hadn't asked these questions about judicial philosophy and the view of the court's role, the nominee wouldn't have been John Roberts."
Roberts is not a "stealth" nominee in the Souter mold. "We know a lot more about Roberts than was known about Souter," a Bush aide says. Roberts went through the confirmation process before, when he became a judge on the U.S. Court of Appeals for the District of Columbia. He was endorsed by much of the Washington legal community and by colleagues from the Reagan and first Bush administrations. The president received messages through intermediaries that conservative Justice Antonin Scalia felt Roberts would be a great addition to the High Court. At least Bush aides thought the messages were from Scalia.
Besides the Bush interview, Roberts had to pass another test, the Rove interview. Karl Rove, Bush's deputy chief of staff, and legal counsel Harriet Miers talked to the candidates for the court at length. Rove, too, was interested in finding out if Roberts was really a conservative and would remain one on the court. He came away convinced Roberts is no Souter.
But Roberts didn't have as vigorous a backer as Judge Edith Brown Clement did. Senator David Vitter of Louisiana and his wife Wendy attended a small dinner at the White House on June 30. They both recommended Clement as the type of conservative justice Bush was committed to nominating. Several weeks later, Vitter returned to the White House to meet with Rove and Miers. By then, Miers had already checked with the other senator from Louisiana, Democrat Mary Landrieu, to see if she would support Clement. She would, Miers said. But it wasn't enough. Roberts outshined Clement in the Bush interview.
Absent a startling revelation, Roberts should win confirmation with relative ease. Still, he has to prove himself to several conservative Republican senators worried about a repeat of Souter. "I just don't know him," says Sen. Tom Coburn of Oklahoma. "I don't have any enthusiasm until I know someone. Personal integrity is the most important issue. If they don't have that, what they say doesn't matter."
Sen. Sam Brownback of Kansas says Roberts "doesn't seem to be a Souter." But he wants to be certain. "He'll be a free agent once he's on the court," Brownback says. He intends to question Roberts in Judiciary Committee hearings on "his view of the Constitution and the role of the courts." He has no doubt about Roberts's skill as a lawyer. Roberts has argued 39 cases before the Supreme Court. Brownback says a Democratic senator told him, "I may not vote for Roberts, but I'd hate to argue a case against him."
Sen. Jeff Sessions of Alabama favored Michael Luttig, a judge on the 4th Circuit U.S. Court of Appeals, to replace retiring justice Sandra Day O'Connor. But, loyal to the president, he calls Roberts a "fabulous nominee." Sessions says two issues will be important in the hearings. One is how Roberts treats the matter of precedent. Sessions says Roberts shouldn't be "too committed to not reversing precedent." The other is abortion. Roberts will be asked about his statement in a 2003 questionnaire that Roe v. Wade is "settled law." Sessions's view is he shouldn't preclude overturning that 1973 decision.
Now think about the 25-year yardstick that Bush applied in his first Supreme Court selection. It shows two things. Bush is looking to pick relatively young justices. Roberts is 50, so he could sit on the bench for two or three decades. And he wants justices who will turn the court to the right and keep it there for years. "A lot of people don't understand how much the president cares about the courts," says a Bush aide. Soon enough they will.
Fred Barnes is executive editor of The Weekly Standard.
I certainly hope Fred Barnes is at risk. Much is at stake.
at risk = correct
We are at a point where you can't get a nominee who has a paper trail. So GW has to go with what he thinks best. This question sounds like a good one.
Sure you can have a nominee with a paper trail. Unlike with Souter and Thomas, the Rs own the Senate and while he might sail through with 51 votes (or 50+Cheney), a nominee with a paper trail would be just fine.
I trust Bush's "gut" ... other than Putin and maybe Vincente, he's done well in picking out people with strong character.
Well you have more faith in the likes of Snowe, Chaffee, et. al. than I do. Then there are Hegel and McCain.Lord knows which Scottish law book Spector will be looking in
ping
Coulter, Bill Bennett (who warned his own Bush41 administration re: Souter) and Charles Krauthammer are all *very* suspicious of the love-in regarding nominee Roberts. I'm more than happy to be in such company.
MHmm. If that were true the Senators wouldn't have cut and run from nuking the filibuster.
I think we will get a "paper trail" nominee when Rhenquist retires (about a week after Roberts is confirmed) and the Democrats are going to be really, really pis*ed.
Big time!
Nah, he's straight.
Sorry...
Haven't seen the Bennett article.
This is a pretty conciliatory Barnes article after the piece he did before likening Roberts' paper trail to Souter's. Wonder why the about-face? Probably some real agitation at the WH over the Souter perception led to this, methinks.
If the WH wants to resolve any concerns, it's going to have to let Roberts speak his real positions at the hearing. That will mean a fight in the Senate, if he's a constitutionalist. And if he's not, well, we'll find out anyway, and 2006 will be tough.
For one thing, as we have seen recently, Roberts' paper trail is actually quite substantial, as opposed to Souter's, who sat on a relatively low profile, quiet court in New Hampshire. Roberts sits on the second most important court in the land, the DC Circuit court.
Secondly, Souter has no history of affiliation, however peripheral, with any conservative causes whatsoever. Souter's conservative manners and demeanour were mistaken by some as evidence of philosophical conservatism. His support by two Northeastern liberal Republicans should have alarmed Bush Sr.
Thirdly, Bush Sr. did not have a finely tuned conservative radar in the person of Karl Rove.
He didn't "turn out" to be a flaming lib . . . he already was one and was just being sneaky about it until he was safely ensconced on The Court.
"For one thing, as we have seen recently, Roberts' paper trail is actually quite substantial, as opposed to Souter's, who sat on a relatively low profile, quiet court in New Hampshire. Roberts sits on the second most important court in the land, the DC Circuit court."
---We disagree on this issue until I see more. Paper trail to me means, as I have said, conservative opinion. And liberal opposition does not a paper trail make.
"Secondly, Souter has no history of affiliation, however peripheral, with any conservative causes whatsoever. Souter's conservative manners and demeanour were mistaken by some as evidence of philosophical conservatism. His support by two Northeastern liberal Republicans should have alarmed Bush Sr."
---No argument there, but Roberts' affiliation is tenuous at best. And Bush Sr. did accept their support because he IS a Northeastern liberal Republican, if a Texas transplant. I do wonder about Dubya. So far, "Compassionate conservatism" isn't the latter, and if it isn't the latter, it's not the former.
Thirdly, Bush Sr. did not have a finely tuned conservative radar in the person of Karl Rove.
---That is maybe the best argument that you've put forth for trusting Bush and Roberts. Sununu was a fat RINO bastard who couldn't tell his ass from his elbow. Rove seems to have it together.
---But that's still going on trust. I don't like trusting a GOP that has failed us with SCOTUS appointments 3 times in the last 25 years. NO MORE SOUTERS.
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