Roberts Reviewed

Get Ready To Be a Bull's-Eye
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July 20 2005 3:54 PM

Roberts Reviewed

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Roberts: Prepare to be Borked 
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Roberts: Prepare to be Borked

Viet and Dahlia, The Supreme Court confirmation season has officially kicked off. Welcome to the Breakfast Table.

I'm watching the proceedings with particular interest because I headed the confirmation team for Justice Stephen Breyer in 1994 (in my position then as associate counsel to President Bill Clinton). I guess that means I was Ed Gillespie (quarterbacking strategy) and Fred Thompson (accompanying the nominee to his meetings with senators) rolled into one. A scary thought.

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It's interesting to hear the current discussion about "controversial" and "noncontroversial" nominations, with the suggestion that a noncontroversial nomination is a cakewalk. Hardly. The Breyer nomination was relatively noncontroversial, and it was the most intense process imaginable. The swarms of Capitol Hill staffers, enterprising reporters, and battling interest groups meant that every day there were new questions and potential surprises to address. Every word that a nominee has uttered, every penny of his or her finances, is subject to intense scrutiny and sometimes wild speculation. None of this can be taken lightly, because anything could mushroom into the sort of storm we've seen in other confirmation processes, particularly if it's not addressed immediately and carefully. John Roberts' Supreme Court nomination will be the first of the Internet age, which will turn up the heat even more.

In the last battle, it sometimes seemed to me that people ran to artillery stations from previous confirmation battles, even though the heavy weapons had little or no relevance to the current nomination. Sometimes it was to the point of farce, or at least comedy. Because academic writings were a sticking point for Robert Bork, for example, Hill staffers pored over Breyer's academic oeuvre. I remember getting a very serious call from one staffer raising portentous questions about an obscure line in a footnote in Breyer's tenure piece on copyright at Harvard Law School. We were a long way from the right to privacy.

I often was struck by the irony: A respected lawyer and jurist reaches the pinnacle of his or her career and pins on an enormous bull's-eye for the next 45 days or so.

The big question with John Roberts, of course, is whether his nomination will be noncontroversial—in which case, it will simply be intense—or whether it will be controversial—in which case it will be molten lava. I think Roberts brings with him three formidable shields: his outstanding legal credentials, his short paper trail, and his affable personality. The first two have gotten considerable attention, but I think the third is going to be important as well. He'll wear well in the hearings, and I wouldn't be surprised if Bush decided to nominate Roberts in part because the president liked him when they got together.

It appears that a major focus will be a brief that Roberts signed as deputy solicitor general, in which he argued in favor of preventing doctors who receive federal funds from discussing abortion with their patients and said that Roe v. Wade was wrongly decided and should be overruled. (Full disclosure: I worked as an assistant in the solicitor general's office while John Roberts was deputy there; I did no work on that particular case, Rust v. Sullivan.) Roberts and his defenders will say that he took this stance as a lawyer representing a client and that the views expressed in the brief shouldn't be imputed to him. Viet and Dahlia, what do you think—is that a good answer? Should he say whether he agreed with it or not? My own view is that this line of inquiry likely will end in a stalemate. But there may be other ways senators could ask Roberts about his views on abortion without venturing into the territory of how he would rule in a particular case. What are your thoughts about this?

Cliff

Cliff Sloan, the author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, is a partner at Skadden, Arps, Slate, Meagher, & Flom and a former publisher of Slate. He has argued five Supreme Court cases.

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