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Washington�The weekend before the Senate vote on Clarence Thomas’ Supreme Court nomination, his Senate “handler,” John C. Danforth, was out jogging and thinking that Thomas had about 70 votes on his side and the whole process would be over in 72 hours. Then disaster struck. Anita Hill’s allegations of sexual harassment erupted. The confirmation hearings were reopened. And Thomas squeaked by the Senate, 52-48. “John Roberts will be confirmed unless disaster hits,” predicted Danforth, a former senator and United Nations ambassador and now a partner at St. Louis’ Bryan Cave. “The one thing I learned 13-14 years ago, disaster does hit. It’s very unpredictable.” Roberts, a former partner at Washington’s Hogan & Hartson and currently a judge on the U.S. Circuit Court for the District of Columbia, has weathered the summer weeks since his nomination to the high court without disaster or near-disaster undermining his chances for Senate confirmation to the Supreme Court. But even as many confidently predict his confirmation despite the risk of “disaster,” no one confidently assumes an easy ride in the Senate Judiciary Committee, one of the most politically polarized committees in Congress. A mountain of memos-more than 50,000 pages-written by Roberts during his tenure as a young lawyer in the Reagan Justice Department and the Reagan White House has become the closely scrutinized “paper trail” that has haunted some nominees of the past and has given birth to the “stealth” nominees of the present. “The information in these memos disabuses anyone of the notion the nominee has little or no record,” said Theodore B. Shaw, director-counsel and president of the NAACP Legal Defense Fund, referring to initial assessments of Roberts as another “stealth” nominee. “In fact, his record is remarkably deep.” The memos address just about every hot-button social and legal issue of the Reagan years: abortion, affirmative action, prayer in schools, sex discrimination, busing. But the reaction 20 years later to issues so passionately discussed in the 1980s seems muted, said another former Reagan Justice Department official, Douglas Kmiec of Pepperdine University School of Law. “His writings may be as clear and as direct, maybe more so, than things nominees in the ’80s said or made available to the [judiciary] committee. But the fact of passage of time has removed their sting,” said Kmiec. Roberts obviously wrote to advance conservative policies, and that obviously disappointed people on the nonconservative side, he said, adding, “And yet Roberts’ involvement does not seem to have in any way damaged his credibility for service on the [Supreme] court.” But it should, countered Shaw, whose organization last week announced its opposition to Roberts’ confirmation based on his record of “consistently opposing vigorous enforcement and application” of civil rights laws. “The passage of time doesn’t alleviate our concerns about Judge Roberts’ views,” he said. “Some people’s views change over the course of time. There is nothing in the available record that allows us to conclude Judge Roberts’ views have changed. Given how deeply held they were, a change of mind would be extraordinary.” Ultimately, that is the question that hours and hours of related questioning by senators will seek to answer this week as the hearings unfold: Do the views expressed in those documents of old reflect Roberts’ judicial philosophy today? All about abortion? The Roberts nomination stands out from high court nominations of the recent past because of the large work-product he produced as a government lawyer, said judiciary scholar Michael Gerhardt of the University of North Carolina School of Law. That work-product is significant now for three reasons, he added: “First, we learn more about Roberts and the reasons why he was chosen as President Bush’s nominee for the Supreme Court,” he explained. “Second, reading Roberts’ work-product makes one want to read more. He was not shy about reaching conclusions and it makes one want to know more about not just his conclusions but the process by which he reached them. “And finally, the administration seems to have relied on Roberts’ record in choosing him but then tells us it’s irrelevant to his judicial outlook. So there is tension there. Does it reflect his likely judicial outlook? I’m not sure we’re going to find the answer to that question.” Whether someone’s work two decades ago is pertinent depends on whether you expect a person to evolve, said Gerhardt. “This administration wants somebody with a steadfast commitment to a particular judicial outlook. They don’t want someone to evolve.” Historian Michael Comiskey of Pennsylvania State University, Fayette, agreed with Gerhardt’s assessment of the administration’s objective. “What I read is the Bush administration has been working for a long time to persuade [groups on the far right] to accept a Roberts nomination, which is curious because it implies they made up their mind to nominate him a long time ago or at least had him very near the top of short list a long time ago,” said Comiskey, author of Seeking Justices: The Judging of Supreme Court Nominees (University Press of Kansas, 2004). “Why would Roberts have been at the top of the list a long time ago? Early in the Bush presidency he wasn’t even a judge, although he was a distinguished practitioner. “President Bush is deeply conservative and so is his vice president. My only thought is people in this administration think they know things about Roberts that no one else knows. Whether that’s true and whether they are correct, is something no one will know until he becomes a justice.” Roberts can expect questions from senators based on documents already released and those withheld from his time as deputy solicitor general in the administration of President George H.W. Bush, but they are simply camouflage for what is the central issue for Democratic senators and their interest- group supporters, said Danforth and others. “The issue is abortion and that’s really it,” insisted Danforth. “It will be gussied up as, ‘We need more documents, more paper.’.” Jay Alan Sekulow of the American Center for Law and Justice, a key figure in the Bush administration’s effort to coalesce support for Roberts among conservative groups, agreed, saying, “There’s no doubt they’re going to push on the abortion issue. There’s so much pressure from liberal groups on Senate members.” While he also expects Roberts to get questions on memos criticizing affirmative action and other civil rights policies and government briefs on environmental and other issues, Sekulow calls them “not very consequential.” By and large, he added, “The joust will be over abortion.” Abortion may have been the primary concern in the beginning, but it is no longer, said court scholar Herman Schwartz of American University Washington College of Law, who works closely with the Alliance for Justice, another organization that came out against Roberts’ confirmation. “If it were just about abortion, you wouldn’t have the NAACP, the Mexican-American Legal Defense and Education Fund, all of these coming out against him,” said Schwartz. “It’s not about abortion, partly because his record is not about abortion.” Realistically, how much can be made of Roberts’ statement in a memo 30 some years ago referring to, in Roberts’ words, the “so-called right to privacy?” asked Schwartz. “It’s very different from calling affirmative action a disaster, comparable worth un-American, and his narrow view of voting rights and access to the courts,” he explained. “There you have a lot to hold onto. I’d be willing to bet the questions on abortion will not be numerous.” Ready or not The Senate Judiciary Committee is the principal gatekeeper for the nomination and the Roberts hearings are likely to expose the sharp divisions among its members, said Gerhardt. “The hard feelings people have on the committee are regrettable,” he said. “There are all sorts of memories for which they are trying to get even or lay the groundwork for future activity. This is not likely to be President Bush’s only nomination. A lot of what will be going on here is positioning for the next hearing or next couple of hearings. Senators will be putting down markers for determining what they do with next nomination.” Regardless of motivation, many committee members have been preparing intensely. Senator Herb Kohl, D-Wis., has formed an advisory group composed of members of the Wisconsin legal and business community to make recommendations to him, said spokesman Patrick Morris. Kohl is interested in eminent domain-a particularly hot topic after the Supreme Court ruling in June upholding the use of eminent domain for economic development-and will most likely ask Roberts for his views, said Morris. Senator Tom Coburn, R-Okla., has a staffer dedicated to helping him prepare for the hearings, said his spokesman, John Hart. “He is interested in questions dealing with the relationship between the federal and state governments,” said Hart. “He also may ask about international law and whether it’s appropriate for the Supreme Court to consider international law. He, of course, thinks it’s not appropriate.” Senator Joseph Biden, D-Del., a confirmation-hearing veteran, teaches constitutional law, but has not been shy over the years about reaching out to the best legal minds in the country when he wants to discuss issues, said his spokesman, Norm Kurz. “I think he does have a sense of where he wants to go in these hearings,” said Kurz. “Where do you draw the line in terms of government intrusion into the personal lives of Americans? He won’t ask specifically about [abortion] choice, but does Judge Roberts see in the Constitution a right to privacy? “He will pursue it in different ways: Where do you draw line for government to act as shield or protector against powerful interests?” Kurz said. “What about tobacco companies advertising to children? How do you decide?” Senator Patrick Leahy, D-Vt., the minority chairman, is interested in executive power and has told Roberts that he will be asked about the controversial Justice Department memo on the use of torture on detainees in the war on terror-a memo written by Jay Bybee, now a federal appellate judge. Judiciary Chairman Arlen Specter, R-Pa., has carefully outlined in two letters to Roberts his questions about the Supreme Court’s commerce clause jurisprudence and rulings under the Americans With Disabilities Act. The biggest fights during the hearings-fights that Specter will try to mediate or settle-will be between members on the far right and members on the far left over what questions can be asked, over form rather than substance, predicted American’s Schwartz.

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