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President Bush’s Selection

July 20, 2005 at 12:00 AM EDT
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RAY SUAREZ: It was exactly 24 hours ago, give or take a few minutes, here on this program, that NewsHour regular Jan Crawford Greenburg of the Chicago Tribune predicted the president would nominate a conservative white man to the Supreme Court and not a minority nominee or a woman, which was the buzz around Washington all day yesterday. Jan is with us again this evening.

And Jan, has a back story begun to emerge for the hours leading up to the president naming this pick? How did he narrow it down to John Roberts?

JAN CRAWFORD GREENBURG: Sure. I mean there had been widespread speculation for the last several months that the Chief Justice, William Rehnquist was going to step down. He’s gravely ill with thyroid cancer and the White House had begun looking to see who would be perfect nominees to replace the Chief Justice. On that list was John Roberts, as were several highly-regarded federal appeals court judges.

But Justice O’Connor surprised everyone with her announcement at the end of the term. So that threw everything up in the air; the White House went back to the drawing board and cast a very wide net, many people urging the president to nominate a woman. Even First Lady Laura Bush has said that she would like to see a woman nominated to take Justice O’Connor’s place. And the president has said he would like to make an historic pick by naming an Hispanic to the Supreme Court.

So White House officials and Bush administration lawyers looked across the country at many qualified women and minority candidates. The president said he would like to look for a diverse candidate, but all of the candidates had some kind of down side. Some were inexperienced; some were inflammatory in their legal views. Some were just too unpredictable for this pick that the president saw as a very important pick that could change the future and the direction of the Supreme Court.

So the president, at the end of the day, his lawyers directed him and he went back to that original list where John Roberts was very much near the top of that to replace the Chief Justice. And after meeting with the president over the weekend, the president decided that John Roberts would be the perfect person to take Justice O’Connor’s seat. The pick, as he saw it, was historic because John Roberts will change the future and the direction of the Supreme Court.

RAY SUAREZ In the days after the O’Connor announcement, a lot of emphasis and a lot of attention was directed at those consultations that the president held with members of the Senate. Is there any sign that that helped?

JAN CRAWFORD GREENBURG: Many senators had urged the president to consult with them, and the president says that he did; he met with senators in the White House, his officials reached out to senators on Capitol Hill, had many phone conversations. Some 70 senators got to express their views.

But at the end of the day, the president went with the nominee that expressed and hold views of the two justices, or believed to hold views of the two justices that he’s always said he most admires, Justice Thomas and Justice Scalia, a nominee who will narrowly interpret the Constitution, who will not read new rights into the Constitution beyond the rights that are explicitly stated in that document, who will, as President Bush said, apply the law, not make up the law from the bench.

Many Democratic senators began saying this is not the consensus nominee that we had in mind. This guy is a strong conservative, a solid conservative. We wanted you to nominate a moderate, a justice like Sandra Day O’Connor, someone who has that swing vote position in the middle, who sometimes votes with the liberal justices, who sometimes votes with the more conservative justices. So many Senate Democrats are saying John Roberts is not the kind of justice that they had in mind for this seat.

RAY SUAREZ Now John Roberts was not one of the names that was floating around Washington yesterday afternoon. And it was the work of other jurists that were starting to get attention and blast faxes and e-mails started to float around the Capitol. Once the Roberts name came out, did people start hitting the books, starting looking at opinions, starting looking at law review articles, that kind of thing, and what is emerging from his record?

JAN CRAWFORD GREENBURG: People are very familiar with John Roberts because he has quite a long record — very established and reputable appellate lawyer; he’s argued 39 cases before the Supreme Court. He’s widely considered one of the best lawyers ever to appear before the Supreme Court. President Bush’s father first nominated him to the appeals court back in 1992.

So people were investigating his record back then; he was nominated again in 2001 again; people looked at his record then. So he’s been around for a while. People are very well aware of him. He has been on the radar screen. But his record, his legal record, and views on the record, it’s very thin. And there’s not a lot there for Democrats looking for inflammatory statements or things that they might use to hold against him can oppose.

He’s been on the federal bench two years here, the D.C.-based court of appeals; that’s not a court that gets these controversial social issues that sometimes groups get engaged in and want to oppose. He’s had about 40 cases interpreting various administrative laws and decisions by agencies. No hot button, contentious issues there; he hasn’t had any kind of writings, law review articles that would suggest any controversy.

So the Democrats now and some of the outside groups will spend the next four to six weeks in advance of the Senate Judiciary Committee hearing over this nomination looking into his background for clues on what kind of justice he would be. They believe he is very conservative. Obviously, the president thinks he’s a solid conservative, but now they’re going to try to find the evidence to back that up.

And Senate Democrats today already are suggesting that they will be looking for some of the memos and documents that John Roberts wrote while he was in government service, while he was in the first Bush administration and perhaps even when he was in the Reagan White House. And that could produce a big battle with the White House over access to some of those documents.

RAY SUAREZ That he has already been confirmed, does that help?

JAN CRAWFORD GREENBURG: He has been before the Senate Judiciary Committee. And he was opposed by three of the Democrats on the Committee. So they’re familiar with him. They’ve looked at his record. They know what views that he has expressed that are out there. He has answered some of their questions; he’s declined to answer some of their questions. So they know what they are going to see when he comes back.

But the questions will be very different. As an appellate court nominee, they’re looking to see if he is going apply the law. When they ask him about Roe vs. Wade, the case that said a woman had a constitutional right to an abortion, you know, as an appellate court judge, John Roberts would say well the Supreme Court has said that settled law and I will apply that faithfully. In the Supreme Court, however, he gets to interpret whether or not it should be a constitutional right.

RAY SUAREZ And there are already abortion-related cases on the docket for next year.

JAN CRAWFORD GREENBURG: That’s right. So if he’s confirmed in September, he will jump right in. There are two abortion cases; there’s an assisted-suicide case; there’s a number of controversial cases already on the docket. But, of course, if he’s confirmed, he would be on this court for decades and decades to come.

RAY SUAREZ Jan Crawford Greenburg, good to see you.

JAN CRAWFORD GREENBURG: Thanks.