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John Roberts Nominated
  Law professor Ann Althouse discusses President Bush's nomination of John Roberts to the Supreme Court
July 19, 2005
 

Court TV Host: Discuss the nomination of John Roberts with Ann Althouse, law professor at the University of Wisconsin at Madison. Watch Court TV's special report, beginning at 9pm ET/6pm PT, take a look at Ann Althouse's blog, and chat with Althouse, live online, right here.

Court TV Host: Welcome, Ann Althouse, thanks for being our guest this evening.

Ann Althouse: Hello, everyone. Questions? Did you watch the announcement? Were you impressed by Roberts?

Question from Rickster: Yes, and yes.

Ann Althouse: Are you planning to watch the hearings? Did you want Bush to appoint a woman?

Question from joe: I watched, and yes I was impressed by his humble appearance.

Question from Paint: Nope.

Ann Althouse: Joe, yes, it was interesting that he said he was "humbled" by being chosen. Roberts doesn't have a long record as a judge, but he has a very impressive biography. Much of his time in law was spent litigating cases.

Question from radical_leftist: Prof. Althouse: Would you please comment on the likelihood that Judge Roberts' work on behalf of the Justice Dept and the Bush administration might be at variance with his own judicial inclinations, especially with respect to things such as the First Amendment and free speech, as was implicated in Rust v Sullivan?

Ann Althouse: Good question. I think when you're representing a client, you say what benefits that client. It's not a personal opinion. Roberts has apparently not been particularly vocal about the hot button social issues like abortion. I think this will make it hard for Democrats to get much footing to oppose him When you speak of "judicial inclinations" -- what does that mean? As a judicial candidate, he'll present himself as following the law, not having any political will. But judges do lean toward one thing or another, and the trick is to figure out what that is.

Question from radical_leftist: He has written on behalf of the Bush Sr. administration that Roe was wrongly decided. If a member of the judiciary committee were to ask him directly whether he believes that the Constitution includes an implicit right to privacy, would he be able to evade the question?

Ann Althouse: I think he would avoid that question. All the recent nominees for justices have said they can't answer questions that would come before the Court. Especially the abortion question.

Question from RachelC: Hi Ann. My husband and I discussed tonight that the timing of this nomination was to deflect attention from the Karl Rove issue. What are your feelings on that theory?

Ann Althouse: I think we can assume that Bush is politically savvy about the timing of things like this. I think a lot of Americans may be eager to hear some different news after so much attention to the Plame affair.

Question from radical_leftist: But how could he avoid it? It is not about a hypothetical, it is about his view of the question of "penumbras" of rights.

Ann Althouse: It's a matter of defining the scope of what is a question that will come before the Court. Democrats will push him to define that more narrowly and to get him to answer broad questions. The general idea of whether there is a penumbra of rights or an evolving Constitution and so forth will be presented as a matter of ideology or theory of interpretation that he should answer. But I think he'll take a position and stick to it, and it's likely to be done in a way that will protect himself from attacks on the abortion issue.

Question from nin: Why is he regarded as a known quantity when he has written so few opinions? What would you like to find out about him in the weeks to come?

Ann Althouse: I think people must know him enough to predict what he will do. The strong conservatives have supported him, and we know they are dedicated to preventing "another Souter."

Question from Rickster: Professor Althouse, do you think that Judge Roberts will have any problem being confirmed?

Ann Althouse: Rickster, I don't. He has such strong credentials. What can be said except to disagree with his ideology? I expect Senator Schumer and others to say things, but it won't prevent confirmation.

Question from James: Schumer made it plain that he would oppose anyone nominated. Will he try to block this confirmation, or merely make it difficult?

Ann Althouse: I think Schumer will apply a lot of pressure, but I think more moderate Senators will not see the value of looking obstructionist. I'm guessing the opposition will not be able to get much footing.

Question from coyote: Why do Democrats go on & on about a nominee's views when Supreme Court justices, I thought, were supposed to interpret the Constitution regardless of their personal views?

Ann Althouse: Coyote, it's because justices do always have tendencies that are reflected in their decisions. Even when they are trying to be neutral and believe they are being neutral, their background beliefs and values will be reflected in the interpretation. But the nominee at the hearings will always be able to raise your point and to say he will decide the cases according to the law.

Question from Rickster: I heard that he has argued nearly 40 cases in front of the Supreme Court. That has to be impressive.

Question from Craig: Everyone brings up Roberts' experience arguing before the Court. How does arguing before the Court translate to being on the Court?

Ann Althouse: I think being a practicing lawyer makes a person sensitive to the real world consequences of decisions. Some judicial rulings create complications that more ivory-tower judges don't seem to recognize.

Question from Sean: We know Roberts is great arguing a case before the Supreme Court, but is he a strict constructionist in the Scalia mold?

Ann Althouse: I'd want to study his opinions more before I could answer that confidently. But did you know that Scalia doesn't call himself a strict constructionist? He'll say emphatically that he's not being especially strict. He's just saying what the law is. I expect Roberts to say something similar. But lawyers know that there is a lot of leeway in interpretation.

Question from Bob: Are you disappointed that a female nominee was not chosen on this go-around?

Question from jdhein22: Professor Althouse, are you as a woman disappointed that President Bush did not nominate a woman to replace Justice O'Connor?

Ann Althouse: I want to see more women on the Court. But I don't mind that Bush avoided creating a "woman's seat" where O'Connor sat. I think it's good that Bush is giving the impression of picking the best person for the job. Roberts probably is stronger than the female candidates who came close. Clearly, Bush considered women, which is good.

Question from MimiG: Doesn't look much like he will be filibustered, does it?

Ann Althouse: I think the Democrats would look awfully foolish filibustering this. They would just seem like political hacks. Don't you think?

Question from Donna: Do you think that, if confirmed, Roberts' "reliable conservatism" will push Kennedy to be more consistently "liberal"?

Ann Althouse: As I wrote on my blog today, I think there is a force of moderation. If you remove a moderate, it creates a vacuum that pulls someone else into the middle. So, yes, I do think it will happen and it will be Kennedy. Conservatives are already unhappy with Kennedy. And liberals will warmly embrace him whenever he issues a liberal decision, as they did after the Lawrence case (the sodomy decision).

Question from Bob: NARAL has already issued a letter for people to send to Congress, denouncing Roberts because of his 1990 brief while Solicitor General, asking that Roe be overturned. Do we really believe Americans aren't smart enough to know that he represented a client, and it was not his personal view?

Ann Althouse: Bob, I think people can understand that. I hope they can. But so many people do worry about the abortion right. So it's understandable that they focus on the material they do have. But I don't think the opposition will get much traction over this.

Question from James: Schumer said that Roberts must earn his confirmation instead of the Senate proving him unworthy. Is this an unusual approach to confirmation?

Ann Althouse: James, yes, I heard him say that and thought it was bizarre. The President's choice creates a strong presumption of qualification. I think something has to be raised in opposition to defeat him. Schumer came across as so hostile. I don't think that stance is very persuasive.

Question from jdhein22: Who is the happiest justice with this selection - Scalia or Rehnquist?

Ann Althouse: Interesting. I think Scalia, probably, since he's looking at a long-term colleague.

Question from jdhein22: Professor Althouse, what impact does this selection have on Bush's future selection(s) were Rehnquist or Stevens to retire?

Ann Althouse: I think some people will say he should appoint a more moderate person next. And he may want to do that to appoint Gonzales, whom he's obviously fond of. But conservatives will want him to act boldly to consolidate a new conservative majority. I think he satisfied the conservatives with the Roberts choice. And I think that he's most likely to continue satisfying them. I especially think that Rehnquist, the towering conservative, will be replaced by a conservative. If Stevens leaves, then it may be different. But I think Bush thinks big, and his legacy will be profound if he keeps appointing strong conservatives.

Court TV Host: Thanks...any closing thoughts?

Ann Althouse: Thanks for inviting me to chat, and thanks for all the great questions. It looks as though we'll have some interesting weeks of hearings!

Court TV Host: Thanks for being our guest. We hope you'll come back!

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