Wednesday, July 20, 2005

John Roberts as Supreme Court Nominee John Roberts as Supreme Court Nominee

Well, everyone was a bit surprised. John Roberts is President Bush's first nominee for the Supreme Court. One surprising thing is how well the White House was able to keep this secret. Up until shortly before his name was disclosed, Judge Roberts was considered a dark horse on TRADESPOTS. Apparently, his name didn't really start to move up until an hour or so before it was announced formally. Pretty good security at the White House.

In any case, a lot of people were surprised at the nomination. But, maybe they shouldn't have been. I am pulling together some of the things I have said elsewhere this morning.

First note that Roberts is very bright and decently young. The first a given, and the second strongly preferred by this Administration. But as importantly, he isn't an academic, and has not been a judge that long. Rather, he spent most of his career as a litigatior - reportedly a very good litigator.

This has a lot of ramifications. First, and most obviously, he lacks a long paper trail. He does have some briefs where he was listed as an attorney, but can honestly claim that he was just doing what attorneys do there - represent their clients. The views expressed therein may or may not be his views, but rather were the views of his client. At that point, the opposition is left with arguing guilt by association.

Next, academics like to hear themselves talk. Judges, to some extent do too. Both have captive audiences. One of these backgrounds may lead to a nominee saying too much. Ann Althouse pointed out the obvious example - Robert Bork.

A litigator knows that a good witness is one who keeps his mouth shut when appropriate, for example, by sticking to "yes", "no", and "I don't remember", on cross. But as a litigator he also knows that he has to watch what he says there too.

For example, one of the adages that you are taught in Evidence Class is that of asking one question too many. You pretty much don't ask any question in court of a hostile witness that you don't know the answer to. If you do, you can sometimes open the door for them to sandbag you. But also, litigators have to watch what they say throughout the case. Too much detail, for example, in the opening or closing, or sometimes even in the trial itself, can confuse a jury.

So, I expect Judge Roberts to be extremely well prepared and to watch what he says very carefully during his confirmation hearings. And because he is a better litigator than most, if not all, of the Democrats he will be facing, I don't expect him to say anything that will adversely affect his nomination.

So, here is my prediction. Roberts will not make any mistakes during the confirmation hearing. He is too good of a litigator, and those on the Democratic side questioning him, by and large, are not. So, his nomination will be sent to the floor on a party line vote. No surprise.

In the Senate, the Democrats will grandstand, but do even worse with him. The Republicans will let this go on for awhile, until they vote for cloture, which will lose on another party line vote. Then, they pull the pin on the "nuclear option". Maybe one or two Republicans may stray, but that is unlikely. McCain knows that if he helps in keeping Roberts off of the Supreme Court, the Republicans won't vote for him for dog catcher, never mind president. And VP Cheney is in the wings if things get tight. So, with the new majority vote rule in place for judicial nominations, debate will be shut off, and Roberts will be confirmed by the Senate, with maybe a couple of adventursome Democrats voting aye.

So, in the end, the Republicans will have both a controversial nominee appointed to the Supreme Court as precedent for later nominations, AND, the majority rule for cutting off debate on judicial nominees. The next one will be a lot easier.

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