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Courtin' the Left and Right:
Roberts Scare Seizes the Trail


Candidates in both parties are already making promises about the shape of the Supreme Court after 2008. (AP).

After calling John G. Roberts Jr. two years ago last month to ask him to serve on the Supreme Court, President Bush hung up and told aides, "I just offered the job to a great, smart, 50-year-old lawyer." The emphasis, of course, was on "50-year-old" -- Bush's way of saying he had just made a choice that would help shape the Supreme Court for three or four decades to come. Or so he thought.

Roberts's seizure during a Maine vacation this week may not mean anything in terms of his longevity on the court but it certainly offered a reminder that anything can happen at anytime. If there were a sudden, unexpected vacancy -- and remember, Roberts is the young whelp compared to his brethren, ranging in age up to John Paul Stevens at 87 -- it would transform not only the Bush presidency but the campaign to succeed him. And even if not, the Roberts health scare pointed out again the stakes in 2008 with the future of the court on the line.

After all, the court term that ended this summer was the first full session featuring both Roberts and Samuel A. Alito Jr., Bush's other appointee, and the shift to the right has been notable on issues ranging from gender discrimination to desegregation to partial-birth abortion, thrilling conservatives and alarming liberals. An increasing number of Americans worry that the court is going too far to the right in the latest Washington Post-ABC News poll -- 31 percent compared to 19 percent in July 2005 when Roberts was first nominated. The proportion that thinks the court is generally balanced in its decisions has fallen from 55 percent to 47 percent in that time period.

So what would happen if another seat opened on the court before Bush leaves office? All-out war, probably, and one that would become a leading issue on the campaign trail as well as in the capital. Some Bush advisers believe a new Supreme Court fight would be the best chance for him to influence his legacy, while some Democrats would try to block any appointment even 18 months before the end of his presidency. New York's Chuck Schumer, the third-ranking Democrat in the Senate, last week said lawmakers "were hoodwinked" by Roberts and Alito into believing they would be more respectful of precedent than they have turned out to be. Republican Sen. Arlen Specter (Pa.) even told the Politico that the confirmation testimony of Roberts and Alito should be reviewed to see if they really were forthcoming about the way they would perform on the court.

As a result, Schumer vowed to try to thwart any more Bush nominations to the Supreme Court for the rest of the president's term. "Given the track record of this president and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least, I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances," Schumer told the American Constitution Society. "They must prove by actions, not words, that they are in the mainstream, rather than the Senate proving that they are not."

That, of course, set off howls among conservatives who complained that liberals like Schumer are simply poor losers who don't respect a president's right to put like-minded people on the court. "This is the Stalinism of the libs, just total control," Rush Limbaugh said on his radio program. "They don't get their way? Shut down the process." Ed Whelan, president of the Ethics and Public Policy Center, a conservative think tank, secured a clarification from Specter that he "did not mean to imply that either Roberts or Alito were disingenuous when they appeared before the committee."

Even if there is not a nomination battle between now and November 2008, the candidates on the trail are focusing on the likelihood that the next president may have two or three seats on the court to fill. On the Republican side, former Massachusetts governor Mitt Romney this month secured the endorsement of Wendy Long, counsel to the Judicial Confirmation Network and a key player in conservative circles when it comes to court nominations. She told the American Spectator that Romney "is the only one I'm absolutely sure" will give the country more nominees like Roberts and Alito. Former New York mayor Rudy Giuliani, a social liberal, nonetheless promised Iowa activists this month that he would appoint justices like like Roberts and Alito.

On the Democratic side, the leading candidates used an appearance this month before the American Association for Justice, the trial lawyers group, to excoriate Bush appointees. "At the time," Sen. Hillary Rodham Clinton (N.Y.) told the group in Chicago, "I warned in my speeches on the floor that especially with Justice Alito he had been so willing to side with big business against nearly anyone on any issue during his judicial career that if given the opportunity to serve on the Supreme Court he could become part of a majority that began to undo years of precedent." Former senator John Edwards (N.C.) added: "They're eating away at the fabric of America, of who we are and what we are."

Not that they're getting ahead of themselves or anything, but some are already projecting who Democrats would appoint to the court should they win next year. Tom Goldstein, who heads the Supreme Court practice at Akin Gump Strauss Hauer & Feld, came up with a list of 30 likely Democratic nominees on the popular SCOTUS blog, then narrowed it down to the four likeliest choices for a first appointment -- Judges Johnnie Rawlinson and Kim McLane Wardlaw of the 9th U.S. Circuit Court of Appeals; Sonia Sotomayor of the 2nd Circuit; and Leah Ward Sears of the Georgia Supreme Court. His five predictions for a second or third seat under a Democrat: Michigan Gov. Jennifer Granholm, Massachusetts Gov. Deval Patrick, Colorado Sen. Ken Salazar, Harvard Law School Dean Elena Kagan and Judge Merrick Garland of the U.S. Circuit Court of Appeals for the District.

None of them, it is fair to say, is much like Roberts or Alito. And so the stakes for the campaign are clear for both sides.

-- Peter Baker

By Post Editor  |  August 2, 2007; 8:35 AM ET
Categories:  A_Blog , The Courts  
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Comments

To mvineyard: The Constitution also states that it is Congress (more specifically the House of Represenetatives) that elects the President under those circumstances. Somehow GWBs pet court conveniently forgot that.

Posted by: MarcMyWords | August 3, 2007 7:22 PM | Report abuse

If Rush is looking for poor losers he should check out the Republicans in the Senate. There was a time when the filibuster was used only when there were serious objections. Now it is being used to totally turn the process on its ear and make 60 votes (as opposed to 51) the new "majority". Actually this may help the Democrats in the long run when voters realize they need to deliver a 60 vote majority to get anything accomplished.

Posted by: MarcMyWords | August 3, 2007 7:19 PM | Report abuse

tstorino - review the full case. Florida judges were violating Florida law and usurping Florida law by trying to find "new intent".

Bush v. Gore by the Supreme Court basically shutdown the judicial activism of the Florida courts. After all the ballots were counted - Gore still lost. (And if the ballots of the military, the ballots that the Gore team worked so hard to invalidate were counted, Bush would have won by a larger majority.

The Fl. supremes attempted to hijack the process with judicial activism, and the Federal Supreme Court stopped them. Sounds reasonable, fair, and most important - Constitutional!

Posted by: mvineyard | August 3, 2007 1:30 AM | Report abuse

None of the nine Justices should rule as a conservative or as a liberal. Their job is to interpret laws as it pertains to the constitution. Period. If we have bad laws such as ones allowing for slavery, or permitting the killing of pre-born babies, or prohibiting women from voting, the framers of the constitution who were much more intelligent than our current crop of liberal politicians provided opportunities for laws to be written and even for the constitution to be amended as needed. That is Congress' job, not the Supreme Court's to legislate.

Posted by: aln_mitch | August 2, 2007 11:23 PM | Report abuse

I was raised a democrat, but I learned to read. That's the truth! And I am glad I am no longer a democrat after reading the posts on this site and others by liberals, or progressives, or socialists, or whatever they want to call themselves...it doesn't matter as they are one in the same. I appreciate the thoughtful comments by the mainstream contributers as compared to the hateful and illogical and ill-informed rantings of the left.

Posted by: aln_mitch | August 2, 2007 11:03 PM | Report abuse

To: mvineyard.

While you are certainly right that many popular decisions of the Warren Court should have come thru the legislature and not the Court (ie judicial activism), the lib judges are not the only ones guilty of judicial activism--the greatest example of judicial activism in the last 20 years is Bush v. Gore.

Posted by: tstorino | August 2, 2007 10:47 PM | Report abuse

It is sad to me that my party (Democrat) has been hijacked by people so vindictive, immature and hate-filled that the best comments they can provide involve accusations of being the anti-Christ, or wishes of death upon a fellow human being. Can one surmise from this that the Democrats have not evolved as far as other humans?
Come on, people, we need to behave like real grown-ups. So the Dems lost in '04. Won in '06. Maybe win in '08. But the American people will not tolerate this kind of venom-spewing forever. It is vile and only shows ignorance and a distinct inability to argue with any degree of rationality. It is getting embarrassing.

Posted by: clg88key | August 2, 2007 10:35 PM | Report abuse

I used to be a Democrat and, when I see the hate-filled lunatics that represent the party on Blogs, I'm glad I left.

May God bless and keep safe ALL members of our Supreme Court.

[Note to self: Cancel WaPo subscription]

Posted by: kuchlenz | August 2, 2007 10:16 PM | Report abuse

Too many hate filled posts with lots of inaccurate information!!

The role of a court is not to be liberal or conservative or to decide which values are fore-front.

The problem with the Democrats is that many things that they want - they can't get pushed through the legislature but figure that they can get legislation via judicial fiat. True judges will let legislation be enacted in Congress, and not try to do it themselves!

The canard about "original intent" - when slavery was legal is a diversion. The Constitution is what the public wanted, warts and compromises and all. It was when Chief Justice Taney decided a little judicial activism was appropriate - in the Dred Scott decision, where the Supreme Court essentially ruled the Missouri Compromise was unconstitutional - that made the Civil War inevitable. The Democrats of the day were happy, and the Republican party was born at that time to support an end to slavery. Without judicial activism, the US might have evolved out of slavery, the way Great Britian did a few decades earlier.

Judicial activism is very bad, and therefore I support strict constructionist like Scalia, Thomas, Roberts and Alito. They wouldn't give us a civil war! I am not too sure about some of the other justices!

Posted by: mvineyard | August 2, 2007 8:32 PM | Report abuse

The left shows its true colors when they wish Roberts dead. It took only a short time before the liberal/progressive hate sites started this line of thought. Disgusting.

Posted by: neardanforth | August 2, 2007 8:06 PM | Report abuse

Roberts is a danger to the associate justices. If he has a seizure while standing then he may reflexively grab on to the nearest person. That would mean that the Chief Justice would hit the deck (again) and take along with him an associate justice many years his senior. Out of an abundance of caution, Chief Justice Roberts should travel in a wheelchair through the Supreme Court office for the next few months to assure everyone's safety. We can never be too safe.

Posted by: blasmaic | August 2, 2007 6:40 PM | Report abuse

Roberts is a danger to the associate justices. If he has a seizure while standing then he may reflexively grab on to the nearest person. That would mean that the Chief Justice would hit the deck (again) and take along with him an associate justice many years his senior. Out of an abundance of caution, Chief Justice Roberts should travel in a wheelchair through the Supreme Court office for the next few months to assure everyone's safety. We can never be too safe.

Posted by: blasmaic | August 2, 2007 6:40 PM | Report abuse

Stevens is a true American hero and should be recognised as such.

I think Specter's comments indicate that Bush would find it very tough to get anyone remotely like Roberts or Alito through the Senate at this time, and it is clear that the Democrats would now have public support in blocking any nomination for fear of tipping the balance further to the right.

As a Buddhist, I say may God protect John Paul Stevens, and give the American people the wisdom to elect a Democrat in 2008!

Posted by: timothy.mullen | August 2, 2007 6:02 PM | Report abuse

I echo and support Ms. Olivia Brower above.
Bush was elected and reelected.
He has the right to appoint Justices.
The demonization of the right is an unfortunate element of the Dem Party and needs to stop for us to move forward as a society.

Posted by: schechterd | August 2, 2007 5:19 PM | Report abuse

Chuckie is going to be the one to collapse and start foaming at the mouth when the next Republican president gets Allison Eid, Margaret Ryan, Ted Cruz, Paul Clement, and Jim Chen on the Supreme Court. :-)

Posted by: jfrederickhansen | August 2, 2007 5:00 PM | Report abuse

Honestly, I'm not a Christian, but my family and I pray for the health of Justice Stevens every day. The house joke that's not a joke, you know?

I don't like the concept of "heroes" much either, but you want to see a hero? Look at Steven's picture. What a tough guy! Thanks Stevens! We appreciate you every day! You too Bader Ginsberg, and Breyer! But Stevens? You da Man! The shizzle! The baddest of dem all! Hang in there buddy! We're sorry the electorate was so dumb in 2004. We tried! Thanks again!

Posted by: otter357 | August 2, 2007 4:26 PM | Report abuse

LEAVE THE JUDGE A=LONG AS LONG AS HE
TAKES HIS MEDICATION HE WILL BE ALL-
RIGHT JUST THE MEMORIE IS SLOW' YOU
FOR-GET THING'S===SENATOR SPECTOR IF HE
KNEW THAT THERE WAS A SIZEOR PROB'HE
SHOULD BE KICKED OUT OF CONGRESS WITH BUSH'S MAN CONTROLING WASHINGTON
THIS COULD BE A PROB'''

Posted by: rugman | August 2, 2007 4:03 PM | Report abuse

TO ALL RIGHT WING CHRISTIAN CONSERVATIVES GEORGE 6 WALKER 6 BUSH JR 6 =666 HE IS THE ANTI CHRIST

Posted by: n_kolody | August 2, 2007 3:34 PM | Report abuse

Please God Let JUDGE STEVENS LIVE TIL 1/21/08 AND CHIEF JUSTICE ROBERTS PASS ON 1/22/08 AMEN

Posted by: n_kolody | August 2, 2007 3:23 PM | Report abuse

Hello?

Has anyone forgotten that we live in a democracy? Bush isn't some fascist dictator-- he was elected by the majority. So how can Democrats claim that whom the President has chosen for the Supreme Court is NOT mainstream, simply because THEY might not agree with the choice?

Perhaps we disagree with his decisions, but does that make the other side EVIL?
COME ON!! The many democrats who are against religion are the ones making most of the religious attacks; calling prominant Republicans SATAN, aren't you insinuating that if anyone follows them they are SATAN worshipers?

GET A GRIP!! If we want anything done (I personally want out of the war), lets try a bit more of a democratic approach to bringing others together, instead of having a hissy fit anytime you don't get your way!!

Independant in Colorado

Posted by: olivia_brower | August 2, 2007 3:15 PM | Report abuse

My brother developed epilepsy in his mid-30s, completely out of the blue. Because of the medication he had to take, he could not think clearly and was demoted several steps at his job. He says the medication makes your mind foggy so that you cannot remember things or solve problems. We'll keep our eyes on Roberts.

Posted by: bb211 | August 2, 2007 2:48 PM | Report abuse

Personally, I hope most of them keel over in 2009, after the new President is inaugurated.

America has values of Truth, Justice, and the American Middle Class way of life.

Not the mockery that comes out of the USSC nowadays.

Posted by: WillSeattle | August 2, 2007 2:46 PM | Report abuse

w04equals666 makes the best argument posted so far but I have one fault with it.

While many Harvard, Yale and Stanford trained lawyers had good grades and were well connected there are also those with good grades and excellent character and experience as well.

My HS classmate was simply the brightest, smartest person in our class with a family of simple means and with absolutely no connections other than his ability. He's a well deserving graduate of one of the above mentioned schools and I would take him over any and all Regents University graduates. He's certainly better qualified and more representative of mainstrean America than any members of the mean-stream law firm of Alito, Scalia and Thomas.

Posted by: rogerlc444 | August 2, 2007 2:33 PM | Report abuse

Justice Roberts is fine and will be brilliantly leading the Supreme Court for many, many years to come.If concerned about the balance of the Court,look to other members who may skew the balance either way.

Posted by: americancitizentalks | August 2, 2007 2:07 PM | Report abuse

"Please drop dead after Jan 20, 2009"

Wow. You stay classy, guys.

Posted by: acheron2112 | August 2, 2007 2:05 PM | Report abuse

nshafroth asks
"Who would the third departing Justice be? I can't imagine anyone other than Stevens and/or Ginsburg leaving any time in the next decade."


Well, Scalia hunts with Cheney, so you have to keep him on the short list.

Posted by: bsimon | August 2, 2007 1:58 PM | Report abuse

Mr Baker-
The Limbaugh quote, while both colorful and indicative of his side's view of the issue, would be more enlightening were it paired with an accurate reflection of history. Was it not the GOP run Congress that held up Clinton appointments to the Judiciary in the same 'Stalinist' way that he now predicts the Dem Congress might block Bush appointments?

Posted by: bsimon | August 2, 2007 1:57 PM | Report abuse

Who would the third departing Justice be? I can't imagine anyone other than Stevens and/or Ginsburg leaving any time in the next decade.

Posted by: nshafroth | August 2, 2007 1:42 PM | Report abuse

I'd also add that, while the President has the 'right' to pick justices that reflect their views, it is the Senate that votes to agree or disagree.

To say the Senate should become lackeys and vote whoever the President puts up ignores the inherent balance of powers built into our system of government. The Supreme Court is an equal partner to Congress and the Executive branch that is built by the other two branches together.

Rush, and others, either want a top-down authoritarian government or he's playing games, working the ref, hoping the Senate will back down and ignore its equal role with the Executive branch on these matters.

Posted by: TimS1 | August 2, 2007 1:14 PM | Report abuse

Hey, they're strict constructionist judges and only want to interpret the Constitution in the way the original framers did. You know, back when slavery was legal and women couldn't vote.

Posted by: meowomon | August 2, 2007 1:13 PM | Report abuse

Hey, they're only strict constructionist judges and only want to interpret the Constitution in the way the original framers did. You know, back when slavery was legal and women couldn't vote.

Posted by: meowomon | August 2, 2007 1:13 PM | Report abuse

Good, thoughtful post. While any President has the 'right' to appoint Supreme Court justices that reflect their views, I would hope the 'right' of the American public to have a Supreme Court that reflects their views would trump the President's selfish perogative.

The Supreme Court should be evenly balanced, at all times, with justices that reflect all major views of Americans. That means hard right and hard left justices of equal number (more or less) with a solid core of justices that reflect more moderate views. The justices also should look like Americans, not just old white males but also some number of women, Hispanics, Asians, and other groups. And not just wealthy lawyers, but working class lawyers (if there is such a thing!) and mayors and so on. And it would not hurt to have one or two justices who were more stupid than educated at Harvard or Yale or Stanford, people who excelled by virtue of their character and experience, not their grades and connections.

It's a great tragedy, and irresponsibility, to think of the Supreme Court as a creature of the President. In fact, the Court should represent the best hopes and ideas of all Americans. That is the only way justice can truly be fair. Anything else is court packing and should be called out by the media like the Post.

Posted by: TimS1 | August 2, 2007 1:04 PM | Report abuse

schumer must be really have been suffering from rectal sphincter hypoxia if he thought that any justice appointed by rove..i mean cheney..err..i mean bush would have any centrist tendencies..

Posted by: w04equals666 | August 2, 2007 11:56 AM | Report abuse

"Republican Sen. Arlen Specter (Pa.) even told the Politico that the confirmation testimony of Roberts and Alito should be reviewed to see if they really were forthcoming about the way they would perform on the court."
Now that would be a start to holding someone in this administration accountable. Yes, I do believe that both Roberts and Alito have demonstrated that they consider themselves part of the Bush Administration. Just like Gonzales...loyalty to the Man not the Constitution. Impeach them all!

Posted by: thebobbob | August 2, 2007 11:56 AM | Report abuse

Anyone that can not uphold their swearing of the Constitution of the USA ought to have the Father take them home.. wherever that might be, hot, cold, moderate. Since I no longer believe America is a system of justice and now reduced to politics, I have not much hope. Why just last night I heard someone say that we must think of positive things around us to negate all the bad news, but I can not imagine trying to laugh at a neat little kitty story by katie Couric whilst believing our nations has bee sold down the riveer by Zionist, CFR secret deals like the North American Union. Oops, almost forgot Saint Cheney said it don't exist! Better yet, I know he's a saint for Satan. www theradioavenger com I hate you liars!

Posted by: abroadventure | August 2, 2007 11:52 AM | Report abuse

The reason that the 9th circuit is overturned by the Supreme Court is that the Supreme Court is far to the right of the mainstream and continuously moves the definition of "constitutional" to the right.

Posted by: arwolfson | August 2, 2007 11:50 AM | Report abuse

Appointing someone from the 9th Circuit is the scariest thought of all! They certainly aren't mainstream America if that's what the Democrats profess to desire. They are constantly overturned by the Supreme Court because of their complete disregard for the law and reliance on emotion and personal/political agenda. I do think people are jumping the gun a litte, but it and should be an important item in the 2008 election.

Posted by: coleman7 | August 2, 2007 11:19 AM | Report abuse

Appointing someone from the 9th Circuit is the scariest thought of all! They certainly aren't mainstream America if that's what the Democrats profess to desire. They are constantly overturned by the Supreme Court because of their complete disregard for the law and reliance on emotion and personal/political agenda. I do think people are jumping the gun a litte, but it and should be an important item in the 2008 election.

Posted by: coleman7 | August 2, 2007 11:18 AM | Report abuse

I echoe the sentiments of adrienne's post.

We all pray that all is well with Roberts until Jan. '09.

(((or)))

Until Bush is impeached ;-)

Posted by: im_timmaaay | August 2, 2007 11:10 AM | Report abuse

Please drop dead after Jan 20, 2009

Posted by: adrienne_najjar | August 2, 2007 11:04 AM | Report abuse

A guy falls down and the ghouls start a death watch. I recall similar treatment when Ruth Bader Ginsberg fell asleep on the bench. Wonder how justice Stevens feels when reading this insensitive drivel.

Posted by: bobholmgren | August 2, 2007 10:45 AM | Report abuse

A guy falls down and the ghouls start a death watch. I recall similar treatment when Ruth Bader Ginsberg fell asleep on the bench. Wonder how justice Stevens feels when reading this insensitive drivel.

Posted by: bobholmgren | August 2, 2007 10:44 AM | Report abuse

"Scare"?

Yeah, I tremble that Roberts could be ill and maybe even worse...
I've been tossin' and turnin' each night since he pulled his Caesar act.

Posted by: kase | August 2, 2007 10:39 AM | Report abuse

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