In Search of Consensus

As the U.S. Senate began its confirmation debate on President Bush’s nomination of Judge John G. Roberts Jr. for chief justice of the Supreme Court, the outcome of that debate seemed assured: Judge Roberts would be confirmed as the nation’s 17th chief justice with overwhelming approval by Senate Republicans and significant support from Senate Democrats. But the refusal of the majority of Senate Democrats to support the president’s nominee was another sad index of the polarization in Washington that makes bipartisan consensus on critical national issues so elusive.

In nominating Judge Roberts, the president, like every president before him, chose an individual who seemed to share his fundamental political views. As a young lawyer, Judge Roberts had served in the Republican administrations of Ronald Reagan and George H. W. Bush. After leaving government service, Judge Roberts, as a partner in a prestigious Washington law firm, established an enviable record as one of the nation’s outstanding appellate lawyers. In 2003, President Bush appointed him to the U.S. Court of Appeals for the District of Columbia Circuit.

Even Democratic senators who voted against his nomination recognized in John Roberts an individual of remarkable intellectual gifts, with a collegial temperament that bodes well for his duties as chief justice. In his testimony before the Senate Judiciary Committee, Judge Roberts insisted that he had no overarching judicial philosophy and believed that each case should be judged on its own merits, while respecting the importance of judicial precedent. On several occasions he expressed his strong commitment to judicial humility, pointing out that it was the role of a judge to interpret law, not to create law. As other nominees to the Supreme Court had done in the past, he steadfastly refused to comment on issues that might conceivably come before the court in the future.

On several occasions during the Judiciary Committee hearings, Democratic senators sought to elicit from Judge Roberts his personal views on sensitive issues like end-of-life choices and urged him to speak of his personal values in approaching such issues. He refused to do so, on the grounds that personal philosophy, like political preferences, should have no role to play in interpreting the law. His questioners were understandably frustrated by their failure to lead him away from a position he maintained with admirable consistency, but Democratic Senator Charles Schumer of New York overstated the case considerably by claiming that as a result of Judge Roberts’s reticence, "We are left playing a bit of a game of blind man’s bluff."

The fact of the matter is that neither President Bush nor his Democratic adversaries can be completely confident in predicting how Judge Roberts may rule on critical issues in the years ahead. Many presidents have been surprised and, on occasion, disappointed by the performance in later years of their nominees to the high court. Instead of judging his intellectual and temperamental qualifications for the position of chief justice, the Senate Democrats who voted against Judge Roberts seemed captive to the narrow ideology of the special interest groups, like People for the American Way and the National Abortion Rights League, that so bitterly opposed his nomination.

As political strategy, the opposition of most Senate Democrats to the Roberts nomination may backfire badly. President Clinton’s two nominees to the Supreme Court, Ruth Bader Ginsburg and Stephen Breyer, were both approved by the Senate with strong bipartisan support, 96 to 3 and 87 to 9, respectively. If the majority of Senate Democrats refuse to approve a nominee of unquestioned qualifications, like John Roberts, then a Republican president may well judge that there is no reason to hope that any future nominee to the court will be able to gain bipartisan support in the Senate.

Senator Russell Feingold of Wisconsin, one of three Democratic senators on the Judiciary Committee who voted in favor of Judge Roberts, concluded after listening to his testimony that Judge Roberts’s impeccable legal credentials, his reputation and record as a fair-minded person and his commitment to modesty and respect for precedent have persuaded me that he will not bring an ideological agenda to the court. The intransigence of most of the senator’s Democratic colleagues, however, may encourage the president to be less amenable to selecting a candidate acceptable to the minority in his next nomination to the court and more inclined to make his choice on the basis of ideology.