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Tilting the balance of power

Depending on Roberts' ideological views, his confirmation as chief justice could alter court's makeup

BY TOM BRUNE | WASHINGTON BUREAU

September 11, 2005

WASHINGTON - As he prepares for Senate confirmation hearings tomorrow, John G. Roberts knows well how a single appointment to the Supreme Court can dramatically shift what is, and what is not, allowed under the Constitution.

As a lawyer in the Reagan and Bush administrations and later in a Washington law firm, Roberts argued for an interpretation of the Constitution that would greatly restrict federal affirmative action efforts using race or gender as a factor.

Roberts at first lost, in a 5-4 decision in 1990. But then he won, in a 5-4 decision in 1995.

The shift did not come because of a law passed by Congress or an order of the president, but because of a change in membership of the Supreme Court: the replacement of liberal Thurgood Marshall with conservative Clarence Thomas.

That example looms over tomorrow's Senate Judiciary Committee hearings on Roberts' nomination to succeed the late Chief Justice William Rehnquist - and heightens anticipation over the nominee whom President George W. Bush will select to replace retiring Justice Sandra Day O'Connor.

"This gives Bush a tremendous potential to move the court in a conservative direction, particularly with the O'Connor vacancy," said Jeffrey Segal, political science chairman at Stony Brook University and a Supreme Court expert.

Democrats on the Senate Judiciary Committee that will hold the hearings are gearing up to grill Roberts, but they also are looking ahead to the next nomination and urging Bush to consult with them.

The pressure on the Roberts hearings has eased some.

"In some ways a Roberts for Rehnquist ought to cause less concerns for those who worry about the balance of the court," said Sen. John Cornyn (R-Texas), a Senate Judiciary Committee member.

Court expert Joel Grossman of Johns Hopkins University agreed, saying, "Roberts is likely to be fairly close to the Rehnquist he is replacing."

Liberal groups such as People for the American Way, however, have stepped up their opposition because of the authority Roberts would have as chief.

They say Roberts is no longer the unknown he was when Bush announced his nomination July 19. Nearly 75,000 pages of archived records released since then show him to be a solid Reagan conservative.

Sen. Charles Schumer (D-N.Y.), also a committee member, said it is all the more important now to probe Roberts' views because he could be in a lifetime job as chief justice where "with the flick of a pen you can change people's lives."

Senators must determine if Roberts has any ideological views that would prevent him from giving all sides in a case before him a fair hearing.

Take his views on affirmative action, and how they do not appear to have changed much during his 25-year career.

When Roberts was a special assistant to the attorney general in 1981 and 1982, his supervisor, Ken Starr, called him "our civil rights shepherd." He hewed to the Reagan line - color blind and gender blind, and anti-affirmative action.

In 1981, he said he rejected a 2-year-old ruling that let employers use race in voluntary affirmative action because a change in the high court left it with "only four supporters."

He expressed those views as an associate White House counsel from 1982 to 1986 and as Starr's principal deputy solicitor general from 1989 to 1993 in the first Bush administration.

In the most dramatic example, Roberts decided in 1990 to file an amicus (friend of the court) brief opposing, instead of the usual practice of defending, a federal policy. In the case of Metro Broadcasting v. the Federal Communications Commission, he filed a brief against the FCC policy of helping women and minorities get broadcast licenses.

"Starr was recused [because he had been a judge on the Washington, D.C., circuit], so he really was calling the shots," said Roger Clegg, a former top Justice Department civil rights attorney who helped write the brief.