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Friday, Jul 10, 2009
The battle over Bush's Supreme Court nominee was supposed to be epic -- so why hasn't it even started yet?
Jul 28, 2005 | No one in Washington fights federal court nominees like Nan Aron, the president of the Alliance for Justice. Over the last 20 years, she has opposed Supreme Court justices William Rehnquist, David Souter, Antonin Scalia and Anthony Kennedy. She helped sink the hopes of Reagan appointee Robert Bork, and when Clarence Thomas was nominated, she was the one who leaked word to Senate staff -- after picking up on dinner party gossip -- that a woman named Anita Hill had a story to tell.
More recently, Aron led the charge on Capitol Hill to filibuster President Bush's most extreme Circuit Court nominees. Those fights, she suggested at the time, were just a preview. There would be a "firestorm of opposition" if President Bush nominated a Supreme Court justice, as he had promised, in the mold of Scalia.
Now the country faces a nominee, John G. Roberts Jr., whom prominent conservatives have likened to a Scalia "without the fireworks." But more than a week after the nomination, Aron says she is not ready to oppose Roberts. "We're doing our best to press the senators to do a full and thorough investigation," Aron says instead, sitting in her office that overlooks Washington's Dupont Circle on Tuesday. "I don't know what the record will show."
Such words do not come easily to the head of the Alliance, the umbrella group for more than 70 environmental, consumer and civil rights groups. Aron has known for years that Roberts was in the pipeline for the job, but she also knew there was little public information to evaluate his record. "I've long assumed that once John Roberts was confirmed for the D.C. Circuit that just like Clarence Thomas and Antonin Scalia, he was headed to the Supreme Court," Aron says. "I also knew, based on his thin public record, he would be the hardest nominee to challenge."
That premonition helps explain the early success of President Bush's nominee rollout. While Roberts smiled for the cameras, liberal interest groups spent much of the last two weeks on the sideline, muted by everything they do not know. Gone, at least for now, are clear threats of a "divisive confirmation battle" or warnings that a conservative pick would cause a "constitutional catastrophe." President Bush picked a judge of the highest reputation and credentials, a corporate lawyer with Democratic friends, the looks of a Boy Scout leader, and a family that evokes Kennedy comparisons. But all those advantages pale in comparison to his most appealing quality for Republicans: Roberts lacks any substantive public record that advocates like Aron could use to mount their attacks. Pro-life, anti-gay rights, and pro-business conservatives are happy with the selection. But for many liberal groups, he remains hidden in plain sight.
Lacking a smoking gun, interest groups on the left have found themselves, at least initially, divided on message. Most of the large pro-choice and women's rights groups, including NARAL, the National Organization for Women, and the Feminist Majority, have opposed Roberts as a direct threat to legal abortions and the health of women. They have been organizing letter-writing campaigns, planned a national "call-in day" for the Senate, and launched new fundraising appeals. They point to the work Roberts did on behalf of the first Bush administration opposing Roe v. Wade.
By contrast, groups like the Alliance for Justice and People for the American Way -- two of the organizations that warned of an all-out war with the White House -- have taken a wait-and-see approach. They distinguish between his work as an attorney for a client and his own personal views. "If we are asking the Senate to be careful and deliberate, then we have to, in the same way, take the same stance," says Karen Pearl, the interim president of Planned Parenthood Federation of America, a member of the Alliance for Justice.
Instead of railing against Roberts, the larger groups have crafted a far more procedural set of talking points. "The White House Must Release Information," blares a recent press release from People for the American Way. "The American people must know the whole truth," reads an Alliance release. "It's not sexy," Kelly Landis, a spokeswoman for the Alliance, says of the more nuanced approach. "I never claimed it was sexy. It's nevertheless a vitally important message."
Tuesday's release of documents from Roberts' time in the Reagan Justice Department provides some hint of what the liberal interest groups hope to find out. It is the first of what promises to be a steady stream of new documents emerging from the archives of the Reagan and George H.W. Bush administrations. More important, the professional memos show Roberts writing about his own views, not those of his client. The first batch include memos showing that Roberts argued for the possibility of restricting the Supreme Court's ability to weigh in on cases regarding abortion, school prayer and school busing. He also argued for a narrow interpretation of Title IX, the law that calls for sex equality in athletic funding, and criticized the "perfectly circular" arguments he found in a report that defended affirmative action.
The White House has so far refused to release similar documents from Roberts' time as deputy solicitor general for President George H.W. Bush, saying it needs to protect attorney-client privilege.
