PAUL GIGOT: Welcome to THE JOURNAL EDITORIAL REPORT. The debate is on. Whether it becomes a summer and fall brawl remains to be seen, but it seems less likely with the president's choice of Judge John Roberts to replace Sandra Day O'Connor on the Supreme Court.
Judge Roberts has the support of conservatives and the respect of many liberals in the legal community. The nomination of Judge Roberts comes at a critical time with the current court split 5-4 on some of the most controversial issues of the day. Divided 5-4 against what this president and much of the American public believe.
ANNOUNCER: On the present court Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, both often mentioned as possible choices for Chief Justice, sit clearly on the conservative side of most issues.
Moving to the center is Justice Anthony Kennedy. Sandra Day O'Conner, a Reagan appointee, became the pivotal center or swing vote on many close issues. Toward the more moderate to liberal side are Justices David Souter, John Paul Stevens, Ruth Bader Ginsberg and Stephen Breyer. Many of the most urgent social issues have been decided by this court by a single vote in 5-4 decisions. So a one vote shift in the court's balance could be decisive.
Take for example the death penalty issue. In 1989 the Supreme Court ruled by a 5-4 decision that it was constitutional to execute 16 and 17 year old juveniles. This year that was overturned by the current court in another 5-4 decision. A one vote shift changed the law.
This fall the new court will decide the constitutionality of the death penalty law in Kansas.
Another issue decided by a 5-4 decision that could be reversed by a single vote deals with abortion and reproductive rights. It is unlikely that the court will overturn Roe vs. Wade which observers believe has a 6-3 majority on the current court. But in its last major abortion decision this current court ruled 5-4 to knock down a Nebraska law prohibiting partial birth abortions.
This fall the new court will take up parental notification or consent prior to performing an abortion on a minor which is the law in 44 states. Seven of the nine justices on the current court were appointed by Republican presidents. But the lifetime appointments sometimes bring unexpected surprises.
ANNOUNCER [ON TAPE]: President Eisenhower appoints Governor Earl...
ANNOUNCER: When President Eisenhower nominated Republican California Governor Earl Warren to be Chief Justice in 1953 few would have predicted, including a bitterly disappointed Eisenhower, that the Warren court would become one of the most liberal in history.
ANNOUNCER: Surely you must think sir that he agrees with you on such issues as abortion, affirmative action, prayer in the school.
ANNOUNCER: But when President Reagan elevated Justice William Rehnquist to Chief Justice in 1986 he got what he bargained for -- a conservative chief justice and a conservative court.
PAUL GIGOT: Joining me to discuss the Roberts nomination and the upcoming battle are Melanie Kirkpatrick, associate editor of the editorial pages, who covers the Supreme Court, Kim Strassel, a senior writer for the editorial pages, and John Fund who writes for OpinionJournal.com and is closely following how the Senate handles the president's nomination.
Melanie, I was struck by moments after the nomination was announced the reaction from people for the American Way, the liberal activist group. They said"sparse record raises serious concerns." That suggests that they would like to oppose Judge Roberts, but they don't really know how to do it. Everybody says he's a conservative. But what do we really know about his judicial philosophy?
MELANIE KIRKPATRICK: I think he's probably going to make a justice in the mold of Chief Justice Rehnquist for whom he clerked on the Supreme Court 25 years ago. Which is to say he'll probably be a careful constitutionalist and you won't see him making up law from the Court. That said, he's only been on the federal bench for two years and he's authored only about 40 opinions which are going to be scrutinized....
PAUL GIGOT: Every word.
MELANIE KIRKPATRICK: ...every word between now and the hearings. But a couple of things emerge from looking at those opinions. One is that he seems to be, like Rehnquist, a federalist.
PAUL GIGOT: Respect for state's rights as opposed to the overweening federal power.
MELANIE KIRKPATRICK: Yes, and a second theme that emerges is that he does, again like Rehnquist, seem to have a respect for the executive power. I'm thinking particularly of a case last week that he joined in a unanimous decision by the D.C. Circuit on Guantanamo which said that the executive branch had the authority to try enemy combatants in military commissions.
PAUL GIGOT: Some of our friends suggest that he might be less inclined than say Antonin Scalia or Clarence Thomas to overturn precedent. That is he might be a conservative who, even if he disagrees with the original decision, might say look, that's law and we don't want to touch that. Do we have any hints in his opinions of that?
MELANIE KIRKPATRICK: It's hard to look at his opinions and see that I think. I'm in a wait-and-see mode on that.
PAUL GIGOT: Okay, what about abortion, Kim? Is that likely to come up as an issue? It always does in these cases and he was an advocate for the first President Bush, before the Supreme Court he was a deputy solicitor general whose job it is of course to argue cases before the Supreme Court. In one of those advocacy cases he made the point in an aside I guess, one sentence, that Roe v. Wade was wrongly decided. Does that mean that we're going to have a fight about abortion here?
KIM STRASSEL: We'll definitely have a fight about abortion. This is the thing that we're going to care about and the groups like Moveon.org are going to expect the Democrats in Congress to make a big issue about this.
I mean he has a pretty good excuse. What he's going to do is stand up and he is going to say "I was a hired lawyer for this, I had no choice. This was just my job to do it. It doesn't reflect my own opinions." And they may have a hard time getting him to say anything more about that because as Ginsberg proved when she was in her hearings one of the standard responses these days is "I'm not going to talk about an issue that may come before the Supreme Court."
MELANIE KIRKPATRICK: I might add on the plate on abortion that as a judge he's never ruled on a case involving abortion. And in his hearings two years ago when he was confirmed to the D.C. Circuit he said he would abide by the settled law of Roe v. Wade.
PAUL GIGOT: Well John then what assurance do conservatives have that John Roberts is not a David Souter? What do we really know that will give them confidence about his judicial philosophy?
JOHN FUND: Paul, the justices that have disappointed conservatives, David Souter and to some extent Anthony Kennedy, came directly from the bench -- they never had experience in practical real world politics. The justices that have tended to stay firm with their conservative principles, Rehnquist worked for Richard Nixon in the executive branch. You had Clarence Thomas working for the first Bush Administration. You had Antonin Scalia working for Reagan. They have much more experience with the practical rough and tumble of politics, they tend to be more seasoned and I think tend to remain more fixed in their views.
So given that John Roberts comes from all that experience with Ronald Regan and George H.W. Bush they are very confident in them.
PAUL GIGOT: Okay, so how bit a fight are we really going to have here in the Senate?
JOHN FUND: I think it will start out with a roar and end up with a whimper because the Democrats don't have much leverage. They're going to ask for documents, but they didn't ask for documents from his days as solicitor general when he came up as an appellate judge. So they're going to look foolish asking for that. And as for the Roe v. Wade case there's not much there because he can always say I was simply representing my client.
KIMBERLEY STRASSEL: That being said I think there is going to be a big fight. There were three Democrats who voted against him when he went up to the appeals court, Durban, Kennedy and Schumer. They're going to lead the charge here to make this an issue, if for no other reason than to send a message to President Bush that this is as far as he can go. That this sort of justice is the most that they'll do and they're going to try to get as many other Democrats on record as opposing him as they possibly can.
PAUL GIGOT: Chuck Schumer of New York, Richard Durban of Illinois and of course Ted Kennedy of Massachusetts who gave a speech, a reasonably fiery speech, the day after the nomination on the Senate floor basically saying he has to answer these questions because we don't know enough about him.
But I think the president has done something very shrewd here because qualifications are off the table. I mean everybody says, even the Democrats concede, he's a terrifically qualified individual. What that does is it makes judicial philosophy the debating ground. That is of course the reason for the Dick Durbans and the Ted Kennedys to oppose him, but it makes it very difficult on the red state Senate Democrats. The Ken Conrad of North Dakota or Mark Pryor of Arkansas. They don't want to fight on those grounds. So I think it's going to be very hard for them to oppose him. Melanie?
MELANIE KIRKPATRICK: I think that's right and I think it will probably end up with a bit of a fight, but over the documents more than anything.
PAUL GIGOT: The documents, the memos that he might have written when he was deputy solicitor general. The advice memos on legal theory on the cases. That's what we're talking about here, right?
MELANIE KIRKPATRICK: Yes, documents that under executive privilege belong to the White House and constitute the private advice that an administration official gave the White House.
PAUL GIGOT: They did not ask for those when he was nominated for the appellate bench however.
MELANIE KIRKPATRICK: No, but they did ask for such documents in at least one other appeals court nominee, Miguel Estrada, and they've also asked for such documents in the Bolton case. So it does seem to be the democratic tactic du jour.
KIM STRASSEL: Well don't forget too that we do have this agreement that was made a while ago with a certain number of Senate Democrats who said that they were only going to stand up from filibuster if there were extraordinary circumstances. Unless there's some real dirt digging that goes on here it could be hard to see how they're going to come up with those extraordinary circumstances.
JOHN FUND: We've got at least three Democrats from the gang of seven that signed that agreement that they don't see extraordinary circumstances in John Roberts so far.
PAUL GIGOT: Okay John, do you think he'll be confirmed and how many votes do you think John Roberts will get in the Senate?
JOHN FUND: I think this is a master stroke nomination, 70 votes for confirmation.
PAUL GIGOT: Wow, Melanie?
MELANIE KIRKPATRICK: I would go even higher and say 75 maybe even 80.
KIM STRASSEL: I'll be the pessimist. I say 65 to 70.
PAUL GIGOT: Yeah, I think I'd go with Melanie's top line. The Democrats will want to vote for this if there's nothing controversial here to show, you know what, we'll go along with the president. But some of the liberals will want to show they can get at least some 'no' votes on the board to warn the president don't go too far next time or you'll be in trouble.