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The Roberts Report

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Many liberals and abortion-rights groups are apoplectic that President Bush has nominated John G. Roberts Jr., a 50-year-old judge on the U.S. Court of Appeals for the District of Columbia, to succeed Justice Sandra Day O'Connor. Of course, few of the names that had been circulated as possible Bush picks would have been acceptable to the Left, or to Democrats generally.

Indeed, many Democrats had decided that Attorney General Alberto Gonzales was the best nominee they could hope to get, the least-conservative person Bush might choose. That is precisely why many in the conservative base of the Republican Party were terrified: They feared that Bush would replace one moderate with another, albeit of a different gender.

But it's unlikely that Senate Democrats will be able to derail the Roberts nomination -- if indeed they decide to try. The Bush nominees who have encountered great difficulty in winning confirmation, whether for a judgeship or another office -- John Bolton to be ambassador to the United Nations, for example -- have fallen into at least one of two categories.

The first category includes nominees who had a trail of injudicious, perhaps even inflammatory, statements or behavior, or who had written judicial opinions that might cause even a middle-of-the-road voter to cringe. Bombastic speeches and judicial robes don't mix very well. But during Roberts's confirmation hearings two years ago, no incendiary remarks came to light.

The second category includes nominees with less-than-impressive legal qualifications. (Having won election to a state Supreme Court isn't necessarily the best test of one's knowledge of the law.) In terms of legal credentials, Roberts is obviously extremely well qualified, whether one agrees with him ideologically or not. While Robert Bork, who was nominated by President Reagan for the Supreme Court in 1987, was extremely learned, his candor about his extreme views and his penchant for making provocative statements became his undoing. Roberts has followed a quite different path.

Looking at the makeup of the Senate, all 55 Republicans, including renegade Lincoln Chafee of Rhode Island, have given nearly 100 percent support to Bush's judicial nominations. And the records of almost three dozen nominees gave opponents significantly more ammunition than Roberts's past seems likely to do.

Assuming that all of the Republicans hold the line and vote to confirm, the president needs the support of only five Democratic senators to have the power to break a filibuster. And at least 10 Senate Democrats are very plausible targets for the White House to approach.

Given their votes on the most-controversial judicial nominees since 2003, about 25 of the Senate's 45 minority members (Democrats plus the independent James Jeffords of Vermont) can be counted on to oppose, on either a confirmation vote or a cloture vote, virtually every Bush judicial nominee who is even slightly controversial. Another 10 have opposed Bush's judicial nominees 80 to 90 percent of the time. But the remaining 10 have backed Bush at least 20 percent of the time. Indeed, six of that final 10 have backed the White House on at least 25 percent of the controversial judicial votes. Seven of the 10 represent states that Bush carried last year. Those senators probably look for opportunities to "buck my party and back the president when I think he's right, and oppose him when I think he's wrong" -- the pollster-tested mantra for members of Congress who represent enemy territory.

Given Bush's inauspicious start to his second term, marked by weak job-approval numbers, a war in Iraq that is going badly, and the crash and burn of his signature policy proposal on Social Security, the president could not afford to choose a Supreme Court nominee who would be defeated or forced to withdraw. Losing a Supreme Court battle would tattoo "Lame Duck" on Bush's forehead.

At least at first blush, Bush seems to have found a sweet spot, picking a very conservative judge who lacks a long trail of controversial statements that could trip him up. Given that just two years ago, Roberts won confirmation to the nation's second-highest court by voice vote, Senate Democrats would find it awkward to go to Defcon 1 in opposition now.

Roberts may well be the most conservative jurist Bush could nominate and still be virtually assured of getting confirmed.

 
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