Ideological disagreements aside, a long confirmation fight would be a mistake, says Supreme Court expert

President Bush’s nomination of John Roberts to fill the Supreme Court vacancy created by Sandra Day O’Connor’s retirement has the potential to spark a messy confirmation process. “I think that both sides have been preparing for a war that seems inevitable regardless of whomever was nominated,” says Neil Richards, former law clerk for Chief Justice William Rehnquist and associate professor of law at Washington University in St. Louis. “The President was always likely to select a judicial conservative, and while I think he picked one of the very best of that pool in terms of talent and temperament, liberals are likely to attack Judge Roberts’ affiliation with and representation of Republican legal causes.

Neil Richards
Neil Richards

“In addition, because the President selected a man to replace Justice O’Connor, the first female high-court jurist in the nation’s history, Roberts is probably going to have a rougher time of it because of his gender. Finally, because the thinking is that John Roberts will tilt the Court to the right, this raises the stakes for any replacement for Justice O’Connor.”

Richards thinks that the President has chosen extremely well in nominating John Roberts.

“Judge Roberts was one of a handful of truly top-notch Supreme Court lawyers while he was in private practice, he has a demonstrated record of public service, and I think he is a very judicious person,” he says.

“On a personal level, I know John fairly well, and really like him. I’d imagine that he and I would disagree about many basic ideological and interpretive questions of law, but he’s very smart and a very decent human being who has the right sort of personality to do the job in a collegial and effective manner. So I strongly support his nomination, especially when I consider some of the other names on the shortlist, who lacked either John’s qualifications, his intellect, or his judicious temperament.”

Richards says that a long confirmation fight would be a mistake.

“As someone whose ideological views are closer to Justice O’Connor’s than Justice Scalia’s, I had great fears about the confirmation of some of the names on the ubiquitous ‘short lists,’ and I think for many of those names, a stiff fight would have been warranted, but I think the Roberts nomination changes the equation somewhat,” he says.

“Certainly, a vigorous discussion of his qualifications and judicial philosophy is a good debate to have in a democratic society. But I think he should be ultimately confirmed. The only reasoned objection to Judge Roberts’ nomination that I have heard is that he is considered to be a conservative. Unfortunately, the November election all but settled that President Bush is going to be able to move the Supreme Court in a more conservative direction.

“Nevertheless, I believe that Justice Roberts is unlikely to be a reactionary conservative in the mold of Justice Scalia or perhaps a young Justice Rehnquist. As an eminently-qualified lawyer and judge with an enormous sense of respect for the Supreme Court, I think John Roberts will be a very well-respected Justice.”