Bench Memos

Impact of Roberts Confirmation Hearing on Next Nomination

For three reasons, the confirmation hearing for John Roberts as chief justice ought to make it much more likely than it was before that President Bush’s nominee for the O’Connor vacancy will be a strong judicial conservative.

First, press reports indicate that, whether fairly or not, Roberts’s testimony on such matters as stare decisis and privacy has caused considerable unease among many social conservatives. In particular, whereas the late Chief Justice Rehnquist was a strong vote against Roe, Roberts now is seen by many as presenting a big question mark on this issue. If a second nominee is also perceived as questionable on Roe, many social conservatives will fear that President Bush’s first two Supreme Court appointments could move the Court to the left on abortion. It is difficult to imagine a more demoralizing prospect for the 2006 and 2008 elections.

Second, as Bob Novak has explained, Roberts successfully defended his application of the “Ginsburg Standard”–providing “no hints, no forecasts, no previews” about any issues that might come before the Court. Roberts has made it much easier for the next nominee to follow the same path.

Third, even on questions that Roberts could properly address, Senate Democrats showed themselves to be remarkably ineffective. Among other things, they made poor use of the voluminous documents from Roberts’s service in the Reagan administration that painted him as a strong conservative. There is no reason to believe that they will be more effective in questioning the next nominee.

I don’t think the actual vote in the Senate Judiciary Committee or in the full Senate on Roberts’s nomination should have any significant bearing on the next nomination. If Senate Democrats vote in large numbers against Roberts, that will only demonstrate that they are irresponsible puppets of the Left.

President Bush has a sizable Republican majority in the Senate, and it appears that it will soon be time to put that majority to the test.

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