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Democrats Struggle to Assess Judge Nominee's Record Offers Little to Go On

Posted on: Friday, 22 July 2005, 12:00 CDT

Democrats and liberal advocacy groups are scrambling to see if they can, and should, build a case against the nomination of John Roberts Jr. to the U.S. Supreme Court. In an atmosphere of evident frustration, the machinery that had been assembled to fight a Supreme Court nomination by President George W. Bush is struggling to deal with a nominee whose two years as a federal appeals court judge has produced only a scant record that could be used to measure what kind of justice he might be.

No Democratic senator has stepped forward to oppose Roberts outright. But advocacy groups said they would press Democratic members of the Senate Judiciary Committee to question Roberts aggressively in confirmation hearings to fill in the information gaps.

"His spare record does raise significant concerns," said Nan Aron, president of the liberal legal group Alliance for Justice. "But at this point, we are embarking on intensive research to learn more about his views through his speeches and briefs filed." Asked if she thought Roberts would win confirmation, Aron said: "Not necessarily. There's a long road between now and the vote."

Even as many Democrats said that Roberts, Bush's choice to succeed Justice Sandra Day O'Connor, could be heading toward a relatively easy confirmation, the first glimpses of Democratic strategy began to emerge.

Abortion rights advocates said they would oppose Roberts by arguing that he would support overturning the Supreme Court decision that legalized abortion, pointing to a brief he helped write while he was a deputy in the Solicitor General's Office during the presidency of Bush's father.

Roberts's experience dealing with corporate lawyers and working for some large automakers could work in his favor with business groups. (Page 16) Leading Democratic senators, well aware of a tense history between Democrats and this White House on the release of documents, said they would call on Roberts to release documents he wrote while working in the Solicitor General's Office, and in the Attorney General's Office under President Ronald Reagan, to divine his views.

"He was involved in a lot of very important decisions in the Justice Department that go way back," said Senator Edward Kennedy, Democrat of Massachusetts. Kennedy also said a combination of those documents and sharp questioning at hearings would fill in Roberts's background.

Democrats cited the refusal in 2003 of Miguel Estrada to provide similar documents in their decision to begin a filibuster against his appeals court nomination. Estrada eventually withdrew without being confirmed.

"I would argue the law is on our side," said Senator Charles Schumer of New York, a Democrat who is also a member of the Judiciary Committee. "But second, when you're a Supreme Court nominee, your obligation is to be as fully forthcoming as possible."

Justice Department officials declined to comment on whether they might release such documents, saying they would await a formal request from the Senate.

The Justice Department also gave reporters their review of Roberts's record on the appeals court and as a litigant before the Supreme Court. In arguing before the Supreme Court, he won more than two-thirds of his cases, and as a judge, he wrote 40 opinions that generated only two dissents.

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David D. Kirkpatrick and Eric Lichtblau contributed reporting.

Source: International Herald Tribune

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