The Establishment Candidate

John Roberts’ ties to elite DC law circles make him tough to beat. Welcome to capital city politics as usual.

Be sure to check out ThinkProgress’ ongoing coverage of the Roberts hearings, as well as the updating reports from the Washington Post.

By Asheesh Kapur Siddique, Princeton University

Will the inner workings of the Washington legal establishment immobilize substantive criticism of John Roberts’ legal paper trail? That’s one question that hasn’t been explored much in the days after President Bush nominated the judge to replace the retiring Sandra Day O’Connor on the Supreme Court. But it’s one that should be asked, because it illuminates how the political culture of the capital city actually operates, and it may be critical to the outcome.

Many liberals have branded Roberts a “stealth candidate” because so little is known about his judicial philosophy and how he will rule on constitutional questions relating to civil rights, gay marriage, and the protection of workers. But two things about the nominee are uncontestable.

First, Roberts appears to be plucked from among the more conservative group of candidates floated in the weeks leading up to this week’s announcement- a point acknowledged by activists working both for and against his confirmation. Roberts’ short stint on the DC Circuit Court of Appeals provides particularly troubling indications that he would interpret the law in a way that appeals to the hard right. In one dissenting opinion, Roberts sought to limit Congress’ ability to protect endangered species on private lands, a position that even arch- conservative appellate judge J. Harvie Wilkinson (favored by many on the right to fill a Supreme Court vacancy) had rejected in a related case before the Fourth Circuit. Ruling in a case involving the civil rights of a young girl who had been handcuffed and arrested for eating a single French fry on the DC subway, Roberts sought to limit equal protection rights exclusively to adults. Evaluating claims for compensation made by American soldiers who had been tortured in Iraq, Roberts adopted the US government’s position that those who had been maltreated had no right to sue the foreign government in federal court. These and other examples from Roberts’ career establish his legal views as anti-environment, anti-individual rights, and highly deferential to executive power. Nobody should operate under the illusion that he’s a “moderate,” with so little in his record to support that thesis – and much to suggest otherwise.

Second, Roberts is a well-regarded member of the same elite circle occupied by those Washington DC power brokers who have significant sway over the success or failure of his nomination proceedings. Ultimately, it’s these connections that may explain why the President nominated Roberts instead of another arch-conservative from the sticks. With double Harvard degrees, a clerkship with Supreme Court Justice William Rehnquist, service at the highest levels of the federal government, membership in one of the capital’s top firms (Hogan & Hartson), and a stint on the DC Circuit Court of Appeals, Roberts has had ample opportunity to befriend and impress establishment liberals as well as conservatives – the people who have the most influence over the tenor and difficulty of his confirmation process. “I think his reputation within the Washington legal establishment will help him immeasurably,” one insider told me. “The only thing that could defeat him is a skeleton-in-the closet, and there’s probably none.” Undoubtedly, this will be a giant plus for a candidate with similar views as a Janice Rogers Brown or a William Pryor, neither of whom worked in Washington. Another close observer of judicial politics underscored that someone “unknown to the legal community that’s responsible for vetting the nominee would have had a more difficult time” winning confirmation than a candidate as well-connected, well-known, and well-liked as John Roberts.

In fact, Roberts’ friendships among the capital’s elite seems to have been a major reason the White House chose him and not Edith Brown Clement, the Louisiana judge widely speculated to have been the choice in the hours leading up to Bush’s announcement on Tuesday evening. Several sources with contacts in the administration (who asked that their identities not be disclosed due to the politically sensitive nature of the subject) speculated that in the aftermath of the bitter fight this spring over the President’s seven filibustered appellate court nominees, Bush’s advisors wanted to ensure that their Supreme Court candidate would be difficult to attack by the same Washington power brokers who had orchestrated the earlier campaign. Roberts may have gotten the nod based on the supposition that because he shares the same deeply conservative ideology of the most radical among the filibustered and is friendly with the liberal legal guns best positioned to derail his candidacy, he would be more difficult to attack – something that can’t be said about some of the other names floated as possible picks.

Calculating that it would be difficult to attack someone who had already impressed his logical adversaries with collegiality and intellectual firepower, the President shrewdly picked a man who has been termed “one of the two or three best lawyers I have seen in more than 30 years” (longtime Democrat and former partner E. Barrett Prettyman), “exceptionally well-qualified” (Clinton Solicitor General Seth Waxman), and “a brilliant judge” (David Boies, Al Gore’s attorney during the 2000 Florida recount) by his natural opponents. Don’t expect these top Democrats to change their tone now, even with the high stakes of this battle. As one source observed, “Liberals are immobilized by his candidacy because they like him personally. He’s been in this town for a long time.”

Another observer who has worked with Roberts in the past noted that a conservative legal mind like Miguel Estrada, probably just as qualified for the high court, would have almost certainly provoked a fight from top progressives because “people don’t like Miguel personally. But [Roberts] has friends on both sides of the aisle.” These friends are now in a difficult position, ideologically opposed to Roberts’ elevation to the nation’s most important court, but bound by the allegiances of friendship. It’s also true that while Roberts’ pro-business orientation may upset the public-interest aspirations of liberal Washington big-firm lawyers with backgrounds in progressive politics, it does support the bottom-line corporate client goals that many of these liberal lawyers pursue in their dreary yet highly lucrative day jobs. This predicament bolsters Roberts’ chances by rendering his most powerful would-be adversaries essentially impotent.

Of course, the nomination process is only in its nascent stages, and it’s too early to speculate on how tough Judiciary Committee Democrats will be in questioning Roberts during this fall’s all-important Senate hearings. But it’s certainly possible that even if Roberts comes across in these public venues as an ideologue with a sharply conservative agenda, he will be confirmed, and Washington’s legal culture will play an important role in facilitating and affecting a smooth and successful up-or-down vote. And so it goes in capital city politics.

Asheesh Kapur Siddique is editor of the Princeton Progressive Review.

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