Will Roberts Break Trend of Faulty Court Picks?

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WASHINGTON - Imagine the scenario. Las Vegas, Nev. President Bush, with all the chips in his hand, walks into the casino and bets the house on his Supreme Court nominee.

He bets that John Roberts, and now Harriet Miers, will adhere to conservative principles, that they will interpret laws, not make new ones. He rolls the dice, and he sometimes he wins, sometimes he loses.

Tom Goldstein, of the Goldstein & Howe law firm, remarked, "The President can believe in his heart of hearts that he is picking a conservative nominee, and he can be surprised."

Goldstein has argued cases in front of the Supreme Court and has seen scenarios like this play out before. It seems it often happens to Republican presidents.

The history of Republican presidents being burned goes back decades. Perhaps the biggest Republican presidential blunder was made in the 1950s by Dwight Eisenhower, when he picked Earl Warren to head the high court.

Warren was a Republican and a former governor of California. He helped Eisenhower get elected in 1952, and was rewarded by being picked as Supreme Court chief justice.

"That was an era in which Republican presidents were looking for nominees that were accepted by the Republican establishment,” Goldstein said. “They weren't so much trying to move the court."

But the court did move - not to the right, but to the left. Under Warren, the high court became an activist court. It started to exert its influence on society like never before. Some of their decisions were far-reaching, such as eliminating prayer and Bible reading in school in the early 1960s.

Years later, President Gerald Ford nominated Justice John Paul Stevens to the high court. He turned out to be a pro-choice liberal.

President Nixon also brought to the Supreme Court the infamous Harry Blackmun. He went on to write the opinion in the 1973 Roe v. Wade decision, which legalized abortion.

President Reagan’s record was not much better. First, he nominated Sandra Day O’Connor, who proved to be a major disappointment to conservatives.

Manny Miranda, former counsel on the Senate Judiciary Committee, said, "President Reagan wanted to have a woman, and at that time, in the early 80s, there were very few conservative women with a paper trail, and so they went with someone they knew a little bit, but they didn't know well enough."

A few years later, Reagan had another chance to pick a conservative, and instead, that pick became Anthony Kennedy. Some of his opinions have gotten scathing reviews from conservatives.

"They picked him because, on paper, he appeared to be a conservative, but when you actually looked at his life and his record and his choices, it showed a person who was a populist - and populists are like politicians. They put their wet finger in their air and determine where the wind is going and that is not what a judge should do," Miranda said.

And then under the first President Bush - a blunder that conservatives are still talking about: David Souter. Not much was known about him at the time, but Bush advisers promised that he was a staunch conservative. Wrong. He sides with the liberal wing of the court nearly all the time.

To conservative activists, the damage has been considerable. Take the makeup on the current U.S. Supreme Court. It is a court that is made up mostly by nominees who were picked by Republican presidents. But the result is a court that is not conservative at all.

The shift to the left has been devastating to conservatives. O’Connor and Kennedy became moderates who frequently vote with the court's liberal wing. But Souter and Stevens went all the way to become left-leaning liberals.

Goldstein says the group that may have suffered the most is the pro-life community. With each disappointing Supreme Court nomination, they saw a wasted opportunity to correct the court's past mistakes on the abortion issue.

"They probably experienced the greatest disappointment with this Supreme Court,” Goldstein stated. “The notion that a majority of the court, by far, were appointed by Republican presidents, presidents who are pro-life. And yet we do not have a court that is pro-life. That has to be really truly infuriating."

But will Roberts, and possibly Miers, be the beginning of a conservative resurgence? Or will they be next in line in a conservative parade of disappointment? Leaders of the conservative movement have been assured that he is no Souter and that he will be a reliable conservative.

But he has also called legalized abortion in this country 'settled law." And there have been recent stories about how he helped gay rights groups in a pending Supreme Court case.

The bottom line is, you just never know.

"It seems that when judges go up to the Supreme Court,” Goldstein observed, “they really get frustrated with the other branches of government, with other local and state governments, and believe that federal judicial power is really the true path to justice. And so in that way, they move further to the left."

And there may be another factor. Judges tend to gravitate towards the middle, towards consensus.

"Because they are a court that can only act through the vote of five people agreeing on something, even people who have very diverse views about the law ultimately do have to come together," remarked Goldstein.

Maybe the last word on all of this should come from Roberts himself. Speaking five years ago on a talk show in Dallas, Roberts addressed this issue of Republican presidents whose picks did not quite work out.

"It's an old story that the appointees - once they’re on the court - they tend to go their own way. And it's not always the way that the Presidents who appointed them predicted would be the case,” Roberts said.

Bush and conservatives are hoping Roberts’ words are not a foretelling of the future.


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CBN News
David Brody

David Brody

Capitol Hill Correspondent

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