When a conservative president is elected, it should come as no surprise when that president selects a conservative nominee. The question is whether the nominee is a mainstream, pragmatic conservative who favors judicial stability and restraint, like Justices Harlan, Frankfurter, and O'Connor, or an activist driven by ideological considerations who will seek to overturn settled precedent and radically reshape the Court, like Justices Thomas and Scalia. As lifetime appointees, Supreme Court nominees bear the burden of showing that they deserve confirmation. While at his confirmation hearings Judge Roberts proffered a reassuring self-portrait of judicial modesty and restraint, we believe that he has not met that burden.
The Center for American Progress took no position on Judge Roberts prior to the hearings. His credentials are impressive, and his service as a private-sector lawyer is, for the most part, unobjectionable.
But the memoranda from early in Judge Roberts' career showed a lawyer who regularly used his great intelligence in opposition to fundamental American commitments, including vigorous enforcement of remedial civil rights laws and personal privacy.
Judge Roberts' performance in the hearings did not dissolve our doubts about his nomination based on those memoranda. Although Judge Roberts represented that he was only advancing the administration's views, the passion of his first-person voice frequently belies this claim. And although Judge Roberts said many fine things about putting the law above his personal views, we find little basis in his record and positions–rather than just his rhetoric–to suggest that he will give respect to the commitments to freedom and equality embodied in our Constitution and our laws. Indeed, we are hard pressed to find a single major case or issue on which Judge Roberts has broken with conservative orthodoxy to adopt a broader conception of freedom or equality. In this respect, he stands in marked contrast to other judges with whom he has been compared, like Robert Jackson and Henry Friendly. And he also differs from Justice Ginsburg, who in her time on the Court of Appeals for the D.c= Circuit, cast votes and wrote opinions that were frequently more conservative than those of many of her colleagues.
When President Bush nominates a conservative judge who has a demonstrated record of living up to the rhetoric that Judge Roberts so impressively used in the hearing, we will be happy to support that nominee. Judge Roberts has no such record.
Finally, elections matter. The President has every right to nominate someone to be Chief Justice of the United States who shares his commitment to conservative dogma. But elections for the Senate matter too, and Senators should give weight to the concerns of those who elected them. We therefore urge progressive Senators to oppose Judge Roberts' nomination.
For more information, visit our Supreme Court nominations resource guide.