Commentary: political realism on Day One

By Lyle Denniston
on Sep 12, 2005 at 8:33 pm

A bit of hard-headed political realism by a junior senator highlighted the opening of the Senate Judiciary Committee’s hearings Monday on the nomination of Judge John G. Roberts, Jr., to be Chief Justice. Sen. Lindsey Graham, South Carolina Republican, summed up matters pithily with these two words: “Elections matter.” That comment brought the committee, and a national television audience, back to the fact that the future of the Supreme Court may well have been decided when President Bush won elections in 2000 and 2004. No matter that the Court never ranked as a top campaign issue, for either Republicans or Democrats, the spoils of victory obviously included the prospect – now come true – that the Court would change and that the President would be centrally involved in shaping a new direction.

Sifting through three hours of senators’ speeches on the first day, it was obvious that nothing new had developed in the nearly eight weeks since President Bush chose Roberts for a seat on the Court (aside, of course, from the shift of his appointment from Associate Justice to Chief Justice after Chief Justice William H. Rehnquist died.) Roberts has done very well in courting individual senators’ approval, with a “charm campaign” of one-on-one visits, and he did nothing to dispel that in a warm and uplifting six-minute statement on Monday. For their part, it seems, the Republicans are still intent on moving the nomination along with as little fuss as possible, and that the Democrats still aim to make a convincing fight of what Sen. Charles Schumer, New York Democrat, called “indisputably the rarest opportunity in American government” (the selection of a new chief justice).

But no matter how lofty the exploration of issues may become on Tuesday and Wednesday, as the senators directly question Roberts, Sen. Graham made it seem that this really is all about politics – about the spoils of the 2000 and 2004 victory. “To me,” he said, “the central issue before the Senate is whether or not the Senate will allow President Bush to fulfill his campaign promise to appoint a well-qualified, strict constructionist to the Supreme Court and, in this case, to appoint a chief justice to the Supreme Court in the mold of Justice Rehnquist.” Bush, said the South Carolinian, has been elected twice, and “has not hidden from the public what his view of a Supreme Court justice should be and the philosophy that they should embrace.” Bush, “by picking you, has lived up to the end of the bargain with the American people,” said Graham.

“We’re not here,” the senator went on, “to talk about liberal philosophy versus conservative philosophy and what’s best for the country.” That, he declared, is what the elections decided. Instead, he suggested, the sole issue before the committee and the Senate was one of judicial qualifications – “whether or not you and all you’ve done in your life makes you a fitting candidate to be on the Supreme Court.”

The senator also had an interesting defense of those memos Roberts wrote as a young government lawyer – memos that have so upset the Democrats and liberal advocacy groups, who are convinced that they show Roberts is a committed, even at times strident conservative. Those documents, Graham suggested, “reflect a conservative lawyer advising a conservative president about conservative policies.” In effect, he implied, the memos showed exactly what could be expected from a nominee chosen by President Bush.

Interestingly, Sen. Schumer, who is likely to become one of the most aggressive interrogators of Roberts in the next two days, did not dispute the core of Graham’s political reasoning. “After all,” said the New Yorker, “President Bush won the election and everyone understands that he will nominate conservatives to the Court.” But, the senator added somewhat weakly, the senators need to determine “whether you’ll be a conservative albeit a mainstream conservative chief justice, or an ideologue.”

Sen. Graham, although he has been in the Senate for less than three years, has become an astute observer of that body’s quaint ways and its volatile moods. He is a savvy vote-counter, and a close analyst of its shifting power centers. He seems to have taken the Senate’s temperature on Roberts, and found it quite favorable for confirmation. Thus, his strategy in the committee seems to be to disarm the Democrats by conceding their perception that, yes, indeed, Roberts is very conservative, while making the implied argument to his GOP colleagues that the issue before the Senate is not Roberts himself, but is simply whether they will cast a loyal vote for their President and his choice.

Roberts was, as expected, a clever witness on his own behalf. Although he said he had “come before the committee with no agenda…no platform,” his brief remarks seemed calculated to assure the conservatives in the Senate that he would not be an activist of the kind about whom many of them regularly complain. “A certain humility should characterize the judicial role,” he said. “Judges are like umpires. Umpires don’t make the rules; they apply them.”