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With U.S. Senate Judiciary Chairman Arlen Specter announcing his support Monday, the nomination of John G. Roberts Jr. as chief justice of the United States gained momentum. The Pennsylvania Republican, in a speech on the Senate floor, said “Judge Roberts’ answers demonstrated that he would take a fair, non-ideological approach to the law.” In Specter’s view, Roberts had not tipped his hand on whether he would vote to preserve or overturn Supreme Court precedent on a woman’s right to end her pregnancy. “Notwithstanding his answers and my efforts to glean some realistic expectation from his words and body language, candidly it is not possible to predict or have a solid expectation of what Judge Roberts would do,” he said. On Sunday, Specter — who chaired last week’s sometimes contentious confirmation hearings to generally positive reviews — even suggested that Roberts serve as the template for President Bush’s next nomination to the Supreme Court. But local legal scholars said Bush faces a much tougher fight when he makes his choice for a new associate justice. Gregory Magarian, a constitutional law professor at Villanova University School of Law and a former clerk for Justice John Paul Stevens, said Specter managed to run Roberts’ hearing equitably. “Sen. Specter attempted to go after information but he didn’t grandstand and he definitely didn’t grease the wheels for him,” Magarian said. But Magarian and Temple University’s Beasley School of Law professor Mark Rahdert, a clerk for former Justice Harry A. Blackmun, both said Roberts’ decision to not answer questions dealing with hot-button issues such as abortion could set a precedent for the next nominee. “He played that card more than any candidate I have seen in recent memory,” Rahdert said. “And each time that happens in the future, nominees will have more room to not answer questions. It’s one thing if it’s an actual case that will wind up before the court. But he can answer questions about an area of the law and he chose not to do so. “I think Sen. Specter did a good job. The Democrats complained that Roberts was not answering questions and they were not given access to certain documents. But it was a very orderly hearing.” Magarian, though, said by not answering questions, a nominee gives the opposition party a legitimate reason to cast no votes. But he said Roberts has no reason to worry about the outcome of his candidacy. “He was a great pick,” Magarian said. “He has the conservative credentials but he is not obnoxious about it so he doesn’t offend liberals as much as a Thomas or a Scalia.” Rahdert said bumping Roberts’ nomination up to chief justice after the death of William H. Rehnquist is fitting in more ways than one. Roberts clerked for Rehnquist and appears to possess similar ideology and temperament for the chief slot. “I think Judge Roberts will be just as strong of a conservative vote as Rehnquist,” Rahdert said. “But he won’t be leading the charge in forming constitutional law in a conservative fashion, and nor did Chief Justice Rehnquist, who was a pragmatist. Now if they replace Justice [Sandra Day] O’Connor, who was not as consistent of a conservative, with another conservative, there will be a conservative block of five on the court.” Magarian, though, sees key differences between Rehnquist and Roberts. Rehnquist began his term in the early 1970s, when the high court was viewed as a font of liberal decisions on highly divisive issues such as privacy, civil rights and the rights of criminal defendants. Conservatives responded by pushing for judicial restraint. As the court grew more conservative, Magarian said, Rehnquist evolved into an exponent of “conservative judicial activism” But Magarian believes Roberts has not demonstrated the same bent toward conservative activism. Magarian said that with Roberts’ nomination as chief justice — a conservative replacing a solid conservative — court watchers will intensify their scrutiny of a replacement for O’Connor, viewed as a more moderate figure and one of the court’s “swing votes.” “This most recent hearing was just a warm-up for the next hearing, which will be a real fight,” Magarian said. “If they were able to get Roberts through in the O’Connor slot, it would have allowed Bush to go back to his list of red-meat conservatives. Ideally, the president would be able to find another Roberts — someone with conservative credentials who isn’t as divisive. But how many of them are walking around? Democrats can now vote for Roberts and say that they played ball with the president on chief justice and now want a more moderate candidate or they will filibuster.” Rahdert said Roberts is a blueprint candidate for getting a nomination through the Senate but may be too mild for much of the president’s conservative base. “This is going to be a much more bitter fight, unless Bush backs down on the type of nominee he sends to the Senate,” Magarian said. “And judging from all the short lists we have seen, I don’t see that happening.”

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