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Less Hysteria, More Perspective

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.



There has been way too much hysteria and not nearly enough perspective in the debate over the Supreme Court nomination of John G. Roberts, Jr. It may be a hot and steamy August, but the Beltway spinners and special-interest shriekers ought to just chill a bit.

Those on the left who have gone to DefCon 2 over Judge Roberts' record as a zealous advocate for past Republican presidents (that was his job at the time and he apparently did it extraordinarily well) are ultimately just as misguided as those on the right who are now wild-eyed over the help he provided to trial attorneys nearly a decade ago in a case involving the challenge to an anti-gay voter initiative (that was his job at that time and he again did it well enough to help convince the Supreme Court to strike down that particularly odious law).

It ought to tell you something about the paucity of the legal and political "ammunition" against Roberts that these non-starters are all that anyone has come up with as the ritualistic deflation of the nominee takes hold. Cynical partisans (and the sloppy politicians who shamelessly pander to them) have a stake in pulling the Roberts' legacy from both ends, stretching it until, they claim, it happens to fit their model of a good Court nominee or a bad one.

The truth is, however, that the more Roberts's record is stretched to left or right the less accurate it becomes in predicting for us what sort of a Supreme Court Justice he is likely to be. If he were a nasty counterrevolutionary like Robert Bork, we already would know it. If he had a troubling personal history like Justice Clarence Thomas we likely would already know that, too. He just isn't the sort of nominee who is likely to trigger a sporadic outburst of partisan conflict the Senate has seen before over Supreme Court nominees.

There are three things about the history of the Supreme Court nomination process you need to know to place Roberts' nomination into the proper context. First, the Senate has alternated over the decades between aggressively pursuing and effectively abdicating its "advice and consent" responsibilities. Second, the marbled steps of the Court are figuratively littered with failed nominees whose legal, political and personal peccadilloes tripped them up just as they were about to get one of the best jobs in the history of the world. Third, nominees less qualified than Roberts have gotten onto the court and those arguably more qualified have not. If the law isn't always a science than surely the Supreme Court nomination process isn't, either.

There has been a lot of talk over the past month about Roberts being a "stealth candidate"; that is, someone who has not written or spoken enough about controversial legal and political issues to have left a "paper trail" that can be used by the enemies of his nomination.

Whether Roberts is or is not a "Trojan horse" for anti-abortion activists, the fact is that over the course of the Court's long history, there have been plenty of "stealth" nominees. Some made good Justices and others didn't. Some answered more serious questions than others when it came to their confirmation hearings (and some didn't even have confirmation hearings).

None told everything they knew or believed about the law, their politics, or what they planned for their own careers on the Court. Does anyone really think that the White House knows everything it wants to know about Roberts and the way he intends to steer the country for the next generation or so? I don't and if you are reading this I bet you don't, either.

Supreme Court nominations have a rich tradition wherein the candidate thumbs his nose at ideology-driven questions by Senators. Sometimes this feistiness wasn't decisive —Justice Felix Frankfurter was confirmed in January 1939 even though he couldn't hide his disdain for a Senator who asked about the former professor's ties to Communism. And sometimes the combativeness proves fatal — Robert Bork lost his chance to be a Justice in part because he came off so poorly when questioned by the Judiciary Committee.

So how are Senate Democrats going to get Roberts to answer substantive legal questions when Justice Ruth Bader Ginsburg didn't offer such answers when she was nominated by President Clinton? The answer is: they aren't. And Roberts himself is likely to come off more like the humble Ginsburg than the crass Bork.

Sometimes the Senate has gathered up its collective backbone and really put a Court nominee through the ringer. And sometimes the Senate has been astonishingly meek. There is no clear trend to discern about the Senate's role other than to say, in true Clintonian fashion, that it all depends upon whom the nominee is. When a president has nominated a spurious choice, by and large the Senate has rebelled. And when a president has nominated a reasonable choice, by and large the Senate has acquiesced.

Yes, it's true that the Senate, over the past 25 years or so, has become more interested in a candidate's judicial philosophy or ideology. And it's also true that nominees of all stripes, and the Administrations that back them, have come up with a stock answer — "I won't comment on an issue that I am likely to face as a Justice" — that is a complete but convenient copout before the Judiciary Committee.

This kabuki dance around the ideology fire doesn't mean, however, that we know less about a Court nominee now than we did 50 years ago. Clearly we know more — even if we don't know everything.

So it resembles a sliding scale, this business of judicial nominations. The more a candidate otherwise appears acceptable the less scrutiny he or she faces in the Senate. The less attractive a candidate appears, the more scrutiny he or she receives. And, anyway, just because there isn't a continuous history and tradition of the full Congressional exercise of its "advice and consent" role doesn't mean it shouldn't happen in this case.

Use it or lose it, right? And if you don't believe me, listen to what a bright young lawyer wrote in 1959 about the topic: "Until the Senate restores its practice of thoroughly informing itself of the judicial philosophy of a Supreme Court nominee before voting to confirm him, it will have a hard time convincing doubters that it could make effective use of any additional parts of the selection process." That young lawyer's name is William H. Rehnquist and I would give a week's salary to know if he still believes now what he wrote then. My guess is that he doesn't, but I sure hope a Senator throws that quote out to Judge Roberts when he takes the hot seat beginning Sept. 6.

In many cases over the years, the White House and Congressional leaders got together, agreed on a nominee, and then shepherded the candidate through the formal (and in those cases quick) process. This filtering role — the "advice" part of the "advice and consent" function — no doubt has reduced the number of bloody scenes like we saw nearly 20 years ago when President Reagan tried to push through Robert Bork despite all the warning signs the White House was shown.

Even so, there have been plenty of nominees to the Court who were not sitting nearly as pretty as Roberts at this stage of the proceedings. Some were rejected for their politics, some for their lack of professional qualifications, some because they were ethically challenged and some simply because they were in the right place at the wrong time. It's not just who you know and what you do. It's when and in what circumstances you are tapped.

Roberts is not a "pro-gay" nominee any more than he is a candidate who will overturn 50 years of precedent in the area of civil liberties in this country. He is not an angry ideologue like Justice Antonin Scalia nor is he a Republican turncoat like Justice John Paul Stevens (a Ford appointee, in case you forgot).

He is proving tough to demonize even by those who make it their living to do so. Sure, he appears on the scene as a loyally conservative jurist who is likely, at least at the start of his tenure as a Justice, to shore up the Court's conservative majority. President Bush told the electorate last fall that, if given the chance, he would nominate to the High Court someone like Roberts or someone even more ideologically conservative, and Mr. Bush won the election.

Other presidents have purposely chosen nominees of the other political party. The oldest living ex-president, Gerald Ford, even declared once that presidents should avoid making Court appointments on ideological grounds. But nothing in the text of the Constitution or the precedent of past Court nomination requires Mr. Bush to choose anyone he doesn't want to choose.

To the presidential victor goes the choice. And, so far, that choice is safe from even the most strident voices that seek to turn this nomination into more of a street fight than it otherwise would be.

By Andrew Cohen

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