Issues beyond the narrow fact of Roberts
1. The next nominee. The President's choice was restrained and wise, on balance. The far-right social conservatives seem to be content with Roberts, who has suggested that Roe v. Wade was a dubious decision. (Are they aware of his statements that suggest he is unlikely to vote to overturn it? Of course they are: but what do they make of them? And what of his assistance to help gay people avoid discrimination?) Roberts is not a replacement for O'Connor, as a swing vote, and I am guessing that the President does not feel bound to maintain the current ideological balance on the court. But what does the President intend to do when filling Rehnquist's seat? Will he consider that he has chosen a solid conservative and now is the time for a centrist justice? Will he, alternatively, feel that Roberts was palatable to most and that he has built up the political capital to try to push through a real extremist? Is this kind of balancing act even something the President cares about?
2. The question of Chief Justice. I would like to add a plug for a non-judge, believe it or not, to fill this role. There are two reasons for this. First, the Supreme Court is most suited for a legal generalist, given the variety of cases that come before it. Most distinguished legal figures are specialists to some degree. Second, the Chief Justice's primary responsibility is to guide the decision-making process of the court. This means he must be able to guide discussion, build coalitions, etc. This particular set of skills is better developed in managerial and political positions. A Senator or Governor would make a good Chief Justice. (O'Connor, too, would have made an excellent Chief Justice, with her political background and consequent pragmatism.) The recent example that comes to mind is Earl Warren, appointed by Eisenhower in 1953. Warren had served as California governor for the previous decade and as state attorney general before that. He was never a judge until he became Chief Justice. In the early stages of speculation about whom President Bush would appoint, some Senators' names were in the mix, e.g., John Pryor of Texas. I wouldn't have wanted to see Senator Pryor himself on the high court, but I like that elected officials were being considered.
3. This is the most important and pressing extra-nominee consideration: the Senate's role and powers in the nomination process. Right now, that issue comes down to access to documents from the White House. The Bush administration has always been problematic in this respect. From the Washington Post:
The real issue is not a substantive one, restricted to the question of whether Roberts would make a good Justice; it is rather the procedural question of how to define the Senate's role of advise and consent to presidential nominations. Denying the Senate access to documents they request clearly usurps the Senate's consitutional duty. The White House generally argues either that the documents are not relevant or important or that they must be kept confidential. Both arguments, of themselves, damage the separation of powers. The White House must not be allowed to decide for the Senate what is or is not important for them to consider. That too easily allows abuses of the process by the executive office. When the White House chooses what documents the Senate may see, it defines the nominee on its own, rendering Senatorial consent meaningless:
Democrats had asked for memos and other documents related to 16 cases involving such sensitive issues as abortion, civil rights, environmental protection and freedom of speech. Roberts has said his personal views cannot fairly be inferred from a position he argued on behalf of an administration. This prodded Democrats to seek documents that might have revealed his opinions about the positions he took in internal deliberations about the merits of different arguments, and whether the government should intervene.
Sen. Edward M. Kennedy (D-Mass.) said in a letter to Bush that White House officials are dragging their feet in producing documents they had agreed to furnish, while engaging in "the leaking of highly selective documents" that are "intended to paint a better picture of the nominee."Moreover, it has happened time and again that when we actually see documents that had been classified we realize that there was no reason to classify them in the first place; the purpose had been to shield them from the eyes of public watchdogs, not public enemies. (It should be noted, also, that a third argument of the Republican leadership -- that the Senate should not be able to question a nominee on his personal legal and political views -- is irrelevant to the question of the Senate having access to documents. It is also, in my opinion, bogus in itself.)
The John Bolton nomination is in some respects a good precedent for disagreement between the executive and legislative branches. The White House refused documentation that would have allowed the Senate to evaluate its nominee for ambassador to the UN and the Senate refused, on those grounds, to confirm him. That's the way it should work. But it is hard to stand on principle alone: Bolton was also clearly a miserable choice for the position, in a way that Roberts is not, and part of the Senate's ability to refuse confirmation depended on the political capital that Bolton's failings gave them. Roberts lacks such acute problems and the Senate consequently has less political maneuvering space.