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Next Supreme Court Confirmation Hearings Could Be All-out War

Wednesday, 21 September 2005 12:00 AM

Senator Charles E. Grassley, R-Iowa, one of few non-lawyers to have served on the Senate Judiciary Committee, said that Judge John G. Roberts Jr. is "six times" smarter than the average member of the Senate Judiciary Committee who would vote on the nomination of Judge Roberts for chief justice. Grassley hardly overstated Judge Robert's qualifications.

Senator Charles E. Schumer, D-N.Y., admitted to Fox News Television Host Bill O'Reilly that he might vote for Judge Roberts (although he probably will not).

For three days Roberts faced the Senate Judiciary Committee without notes, answering questions about memoranda he had written while a Special Assistant to Attorney General William French Smith and while an Associate Counsel to President Ronald W. Reagan.

If confirmed, Judge Roberts, age 50 years, would be one of the nation's youngest chief justices. He could serve on the Supreme Court as long as the 33 years his mentor Chief Justice William H. Rehnquist served as an associate justice and as chief justice.

The Senate Judiciary Committee, which includes some left-wing senators, may vote as early as September 22. The full Senate tentatively is scheduled to vote one week later. As of this writing a filibuster is so unlikely that Judge Roberts could become the chief justice of the United States, assuming that office when the court reconvenes October 3.

President Bush, in both presidential elections, promised to appoint "Justices like [Antonin] Scalia and [Clarence] Thomas." Would Roberts fulfill that promise? Perhaps not.

Justices Scalia and Thomas did not fear breaking precedent when they believed federal law, such as Roe v. Wade, upon which much of the Roberts hearing was focused, has not been decided properly. Roberts appeared cautious and willing to rely upon precedent. Senator Schumer said, "[Roberts] is a conservative but a mainstream conservative."

Those looking for a revolutionary conservative would be disappointed in Judge Roberts. I suspect his voting record on the High Court would please conservatives most of the time.

President Bush set high standards when nominating Roberts. The problem for Bush is whom to nominate for associate justice to succeed the retiring Sandra Day O'Connor. It is doubtful that the next Bush nominee could match Judge Roberts' intellectual prowess.

It might not matter. The battle to replace Chief Justice Rehnquist has been a battle to replace one conservative with another conservative. The Left has not fought that hard, having spent little money to defeat the Roberts nomination.

Now comes Armageddon. Justice O'Connor, President Reagan's first appointee to the Supreme Court, sometimes was a swing vote.

The president's nominee to succeed Justice O'Connor could face a more hostile Senate Judiciary Committee than Judge Roberts faced.

Yes, Senator Joseph P. Biden Jr., D-Del., attempted to launch his presidential campaign by criticizing Roberts. Yes, Senator Edward M. Kennedy, D-Mass., attempted to fulfill his commitment to be the Lion of the Left. Yes, ranking Democratic Senator Patrick J. Leahy of Vermont said before the hearings that he couldn't vote for Roberts and tried to justify his position during the hearings.

But these senators' questions may be mild when compared to those the next nominee could face.

The Far Left, which dominates the Democratic Party, could attempt to defeat the next nominee based upon the assumption that President Bush would nominate an individual that conservatives could support. I believe the president will so nominate.

First, having spoken with the president about this issue, I am convinced he sincerely believes that the Court needs justices who would interpret the law, not make law. Second, why would he not nominate a conservative?

The president leads a fragile coalition of conservatives held together for one reason: judges. If a so-called consensus nominee were appointed to replace Justice O'Connor, as the Left demands, many in the president's coalition would defect. Over immigration. Over spending. Over the war. The president knows this. I am confident he would not disappoint us.

Liberals would protest the president's nominee. I hope the Supreme Court nominee would be prepared for such dissent and would be able to overcome it. If the nominee had cheated on a test in third grade, cheating would become an issue. If the nominee declared "I do not support Roe v. Wade," the chance for confirmation would be unlikely. If the nominee were pro-abortion, President Bush would be in trouble. The nominee should understand that.

Here is another scenario. Remember the Gang of Fourteen? The Gang of seven Democratic and seven Republican senators pledged that there would be no filibuster of the president's judicial nominees except under "extraordinary circumstances."

I believe that MoveOn.org and other wealthier Leftist groups would contribute millions of dollars to the seven Democratic senators. These senators do not have the principle of senators such as the late Senator James B. Allen, D-Ala. Senators Robert C. Byrd, D-W.V., and Mary Landrieu, D-La., and freshman Senator Ken Salazar, D-Colo., could balk.

With adequate pressure, the senators could declare that the Bush nominee constituted an extraordinary circumstance and filibuster the nominee. If two of the seven senators were to return to the fold, Democrats would have the support they needed to defeat the Bush nominee. It would take remarkable developments to avoid this.

If you thought the Roberts hearings were intemperate, you would be amazed at the assault the next nomination could produce. Remember Judge Robert H. Bork's nomination? Or Justice Clarence Thomas' nomination? Hearings for the next Bush nominee could resemble the former hearings more than they would resemble the Roberts hearings.

What a tragedy that the confirmation process for the High Court has come to this. If you are so inclined, pray for President Bush's nominee. That nominee will need God's blessing to emerge successfully from what could happen. God save the Republic.

Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation.

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Senator Charles E. Grassley, R-Iowa, one of few non-lawyers to have served on the Senate Judiciary Committee, said that Judge John G. Roberts Jr. is "six times" smarter than the average member of the Senate Judiciary Committee who would vote on the nomination of Judge...
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Wednesday, 21 September 2005 12:00 AM
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