With the nomination of Judge John G. Roberts of the D.C. Circuit, President Bush has nominated a lawyer with a solid reputation as an able advocate who appears to be both conservative and confirmable.
The fact that he has been an appellate judge for only two years is a blessing as far as confirmation is concerned but potentially of concern to citizens. He has simply not had time to create a record long enough to be analyzed for nuances.
Graduating from Harvard College and Harvard Law School, Judge Roberts served in the Reagan administration, as special assistant to Attorney General William French Smith and as associate counsel to the president, and in the first Bush administration as Principal Deputy Solicitor General. In that capacity and as a private attorney he has written and argued numerous cases before the Supreme Court.
The most potentially controversial element in his background is the fact that he signed onto the 1991 administration brief in Rust v. Sullivan, which argued (successfully) that doctors and clinics receiving federal funds may not talk to their patients about abortion. A footnote in the brief argued that Roe v. Wade, which legalized abortion, was wrongly decided and should be overturned. That was the position of the first Bush administration, and Judge Roberts was acting as its lawyer. He will be criticized for that passage, but it seems unlikely to stymie confirmation.
On the D.C. Circuit, Judge Roberts, writing for a unanimous court, rejected challenges to the arrest of a 12-year-old girl for eating french fries on a Metro train. In Rancho Viejo v. Norton, he dissented from a decision affirming a regulation governing the treatment of a toad on the grounds that there were no commercial implications so Congress didn’t have authority under the Commerce Clause to write the regulation.
He affirmed a search of the trunk of a car in a bank robbery case that some might find questionable. He dissented from a majority holding that Secretary of Labor Elaine Chao had exceeded her authority by promulgating certain reporting requirements for unions.
This is hardly enough of a record to make a definitive judgment. Judge Roberts could turn out to be like Justice David Souter, at first reputed to be a conservative, who turned out to be more liberal. But the first impression is that he is a confirmable candidate who could nudge the court a notch or two to the right.