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ND legal experts stand behind Roberts

Maddie Hanna | Tuesday, September 6, 2005

Supreme Court chief justice nominee John Roberts, who was elevated following the death of Chief Justice William Rehnquist Saturday, has not been told when his official confirmation hearings will begin.

But Notre Dame legal experts gave the potential justice their seal of approval and said the process is unlikely to create controversy.

Notre Dame law professor Richard Garnett, who clerked for Rehnquist in 1996 and 1997 and has met Roberts, said he saw the nominee argue before the Supreme Court several times.

“He was fabulous,” Garnett said. “It was kind of like, when the word got out that Roberts was arguing, people would drop what they were doing and go watch because it was going to watch a real craftsman.”

Similarly, law professor A.J. Bellia, who clerked for Supreme Court Justice Antonin Scalia in 1997 and 1998, called Roberts “phenomenal.”

“He’s the best Supreme Court advocate I had ever seen in action,” Bellia said. “I think he’s an excellent choice. He strikes me as somebody being concerned about the law of the case as opposed to the politics of the case.”

Garnett said Roberts’ confirmation was a “sure thing,” although he predicted around 25 or 30 no-votes.

“The Democrats won’t have the votes to sustain a filibuster even if they wanted to,” Garnett said. “I think people will vote against him, even though they know he’s going to be confirmed, because the polarization’s gotten worse. But that’s unfortunate, because whatever one’s ideological views, based on his merits he is one of the best qualified nominees in 50 years.”

Political science professor David Campbell said he thought Roberts would most likely be approved quickly, noting that he is “not a hard-core ideologue.”

Both Campbell and fellow political science professor Peri Arnold reflected on the lack of controversy in Roberts’ background. Roberts’ stint in private practice reveals little about his beliefs, Arnold said.

“Even though he has a large paper trail, it is a paper trail reflecting the views of his clients,” he said.

But Garnett said what is known about Roberts – and the paper trail mentioned by Arnold – is relatively standard for Supreme Court nominees.

“I probably disagree with those who are saying the paper trail doesn’t tell us much,” he said. “It’s certainly more than we knew about, say, David Souter. It is true that most of what he’s done has been in his capacity as a lawyer with a client, so you can say that doesn’t tell us necessarily what he really thinks. But you know, I think we know as much about what he really thinks as we’re entitled to know.”

Although Roberts does not have an extensive history as a judge, Garnett said the nominee’s background as a Rehnquist clerk in the early 1980s as well as positions within the Reagan and first Bush administrations were telling.

“I think, actually, if you want to know where Roberts is on a lot of stuff, Rehnquist is a good place to start,” said Garnett, who disagrees with the public’s demand to know Roberts’ position on controversial issues.

That hasn’t always been part of American philosophy, he said.

“It’s actually kind of a recent idea that in order to judge a nominee, you had to have tons and tons of paper,” Garnett said. “For most of history it was, you know, someone’s nominated, probably a friend of the president … You had hearings, and in the hearings you asked some questions, and the questions gave you the answers, and that was it. No one asked about how you were going to rule in Roe v. Wade, how you were going to rule in Miranda, whatever.”

Campbell characterized the upcoming Judiciary Committee confirmation hearings as “a bizarre little game they’ll play when the Senate will ask Roberts to speak … a Kabuki dance.

“The general feeling is a potential justice will simply say, ‘No, I can’t discuss this situation unless I have the facts of the case in front of me,'” Campbell said.

Since the situations presented to Roberts will be hypothetical, Campbell said he could sidestep the questions with the above response.

Garnett did not predict a dramatic shift in the Court’s decisions with Roberts’ confirmation, explaining that while Roberts and the recently retired Justice Sandra Day O’Connor have different methodologies, they would probably come to the same decision on most cases.

“He’ll be much more likely to use crisp, technical, very careful legal analysis,” Garnett said. “Whereas Justice O’Connor was often very much, ‘We have a lot of factors, let’s balance them,’ that kind of approach.

“There have been some cases in recent years where I think they would have voted differently, but even if those cases came up again, I don’t think Roberts would vote to overrule them,” he said.

Garnett said the belief that Roe v. Wade, the landmark 1973 Supreme Court case protecting the right to abortion, could be overturned under Roberts was an idea generated largely by Senate Democrats, since Roberts has declined to comment.

Instead, Garnett believes the change will come in the dynamics of the Court.

“It’s been awhile since the Supreme Court had any new members,” Garnett said. “And one thing we’ve seen is that when the Court gets a new member, no matter what that member’s views are, it sometimes tends to change the dynamics. When Justice Thomas came on the Court, Justice Souter started voting differently.”

He also noted Roberts’ religion – Catholic. If Rehnquist was still alive, the addition of Roberts would have raised the Court’s composition to two-thirds Catholics and Jews.

“Through most of our history a lot of Americans would have been freaked out by the idea of more than one,” Garnett said. “For a long time there was the one Catholic seat and one Jewish seat.”

But he emphasized that a nominee’s religion cannot predict a voting pattern.

“A lot of the work these judges do, religion doesn’t dictate the answer to it. Faith doesn’t tell us what this antitrust statute means. It doesn’t tell us how judges should go about interpreting antitrust action,” Garnett said.

Whatever their opinion of Roberts, the professors said the confirmation process would play an important role in their classes.

“I personally think [watching the process] makes all the difference,” Campbell said. “We will definitely discuss it. I do what I can to bring in current events, and that’s a big one.”

Arnold seconded the importance of being a politically aware student.

“It’s crucial to an education that college students be very attentive to public affairs, including reading a good newspaper on a regular basis,” Arnold said. “The make-up of the Supreme Court affects all of us.”