According to a recent Annenberg Public Policy Center poll, eight out of 10 Americans and 94 percent of lawyers think the process of confirming judges to the Supreme Court has become too politicized. But Theodore Ruger, a Penn Law assistant professor, says this political process may be exactly what the Founding Fathers intended, considering they gave the President and Senate the power to nominate and approve justices to the highest court in the land.
Ruger, a constitutional law expert, cites hearings for both Robert Bork in 1987 (who was not confirmed) and Justice Clarence Thomas in 1991 as especially contentious. “In the past few decades or two,” he says, “we’ve entered into a period of unusually strident partisan arguments over judicial appointments,” which is likely a reflection of our broader political climate.
So, who is the man who is provoking this fall’s political fight? Ruger, who clerked for Justice Stephen Breyer from 1997 to 1998, says that prior to his nomination, John Roberts was well known in Washington legal circles, particularly because he had argued more than 30 cases before the Supreme Court. “All of the justices know him and respect his advocacy skills,” says Ruger. “Until his nomination, he was certainly not well known in broader political culture.” If Roberts is confirmed, Ruger sees him having little trouble fitting into the court. “He’s personable, fairly soft-spoken and collegial,” he says. “Certainly, it’s unusual to find legal writing that has any kind of wit. He seems to have a dry, somewhat self-deprecating sense of humor that should endear him with his colleagues.”
Still up in the air is Roberts’ attitude on judicial precedent, or cases that have already been decided. “What will he do when judicial precedent appears to go against what he might prefer?” asks Ruger, who says that by and large, Roberts appears to be a conservative. Will he be willing to follow judicial precedent or be more activist, overruling prior Supreme Court law?
Either way, Ruger predicts Roberts will be confirmed, but not without a fight from some Senate Democrats. “I think that the criticism of Roberts from some Democrats and certain Democratic, left-leaning groups will intensify,” Ruger says. “Some more moderate Democrats already have expressed support for Roberts and will continue to do so . . . I think, in part, there’s a sense among Democrats in the Senate—one could do a lot worse than Roberts.”
Originally published on September 8, 2005