Friday Interview: About John Roberts

Martinez: Remind us what the Constitution says has to happen in terms of a Supreme Court nomination.

Orr: Well, constitutionally it is very simple. The President nominates, the Senate confirms. The question is the advise and consent aspect of it. I think there are some senators who feel that they should have a greater role and a greater impact on the outcome.

Martinez: That does seem to be the rub. We have some senators saying they want reams and reams of documents and others saying they are willing to rely on less. So advise and consent really seems to be where we are going to have some trouble.

Orr: Well obviously, Judge Roberts will have to be confirmed by a majority of the Senate, and I think most of the observers feel that that will take place. Any chance of a filibuster effort by those opposing his nomination is pretty remote, and even if they tried, it would be unsuccessful. But the hearing before the Senate Judiciary Committee … will focus on his record and on Judge Roberts answering questions to whatever extent he is comfortable in doing.

Martinez: And perhaps not answering some questions.

Orr: Right.

Martinez: What is your sense of him — his qualifications.

Orr: Every account is that he is extraordinarily bright, extraordinarily diligent and a hard worker and an affable, likeable individual; a real professional. I think there is no question that his professional qualifications are exemplary and that once confirmed, will do an outstanding job.

Martinez: We hear this phrase, “judicial temperament.” What does that mean?

Orr: Well, I think that is probably more applicable at the trial level, where the judges are dealing with lawyers and witnesses and the like. But even at the appellate level, at the highest level of the U.S. Supreme Court, it is, I think, best described as having an appropriate sense of fairness and open-mindedness about each issue that comes before the court, and treating the lawyers arguing the case with proper respect and consideration.

Martinez: He is said to be a conservative judge. At least some say that. He doesn’t have a lot of written record to look at at the appeals level. How likely is it that he would interpret the Constitution in terms of original intent? Is that what people mean when they say he is a conservative judge?

Orr: Well, I think they look at his background and they see him as a conservative person, both in his political and personal philosophies. His judicial record would indicate that he certainly is going to take a fairly conservative approach in interpreting and applying the Constitution.

Martinez: Others say the fact that he has argued cases before the Supreme Court might somehow give him better insight into how the court works and the seriousness of deliberations. Do you buy into that theory?

Orr: Well I think that the benefit of having argued the cases is that he has a great appreciation for the give and take of the advocacy process, and while parties on each side of an issue perhaps feel extremely committed to their point of view, most lawyers understand that there are very few clear-cut questions that reached the highest levels.

Martinez: There is a lot of pomp to all of this, but there is also a lot of rough and tumble behind the scenes. Already we have groups who are opposed to Judge Roberts hammering away at his nomination, doing a lot of interviews, attempting to influence the outcome. Give us a sense of what is going on behind the scenes on the Republican side.

Rotterman: Well they have taken Ed Gillespie, who of course was the Republican National Committee Chairman and was involved in Bush’s campaign last time, and they do have a war room inside the White House. And they have Fred Thompson, former Senator and now actor, who has shepherded him around and is very well respected on the Hill and among members of the Senate. I think his initial rollout, if you can call it that, was very good. He is very well respected among the liberals and conservatives within the law community. He was [Chief Justice] Rehnquist’s clerk. He has argued 39 cases in front of the Supreme Court. Where the Left will try to get at him will be on the environment, and on the abortion issue, because he did write some opinions for his client in the Reagan administration, as well as George Bush Senior, in regard to abortion.

Martinez: Do you think there is going to be any chance of the filibuster?

Rotterman: No, actually, I don’t think so right now because I think the “Gang of 14” [a bipartisan group of lawmakers] — who are centrist — would not allow that to happen. It is a foregone conclusion, barring any new information that the Left will bring up on him.

Martinez: That gets us into this question of opposition research, as a lot of folks call it. Is this poor man, Judge Roberts, going to have people digging through his trash?

Rotterman: Well, I think that every move he has made since he was a child will be scrutinized. There is no question about it. I think one key … is how [Sen. John] McCain reacts. I think that is going to be key. Obviously, [Sen. Charles] Schumer, Ted Kennedy, Barbara Boxer and that crowd, which I will say is the far Left of the Senate, are going to vocally oppose him.

Martinez: They are going to vote against him no matter what. Isn’t that a fair assessment?

Rotterman: That is right, and we have 55 solid Republican senators who will vote for him. In regards to the filibuster, I would say that it is highly unlikely at this point, that you will see a filibuster. You know, public opinion is against the Left on this and I frankly think that this is their last gasp.

Martinez: Really?

Rotterman: Yes, I really do. I do think this [Roberts] is more of a Rehnquist-type jurist. He is very well liked.

Martinez: Is he going to move the court to the right in your opinion?

Rotterman: He is going to move the court to the right, but it won’t be a “Scalia right.” It won’t be a “Scalia-Thomas right.” It would be a “Rehnquist right.” But you know, let’s face it. During his tenure, the single most important thing Bush will do, domestic policy-wise, is appoint justices. And frankly, I think he led off with a very good appointment.

Martinez: What should we expect over the August [congressional] recess?

Rotterman: Well, I think you are going to see the Left out there in full force — the Eleanor Smeals, the Barbara Boxers, the Ted Kennedys — on the talk shows. It will dominate the talk shows for probably the next three weeks. Karl Rove is very thankful.

Martinez: That is right; he is off the front pages of national papers.

Rotterman: This will be the focus. The White House’s goal is to have hearings in September and have him [Roberts] confirmed by October. This could be the calm before the storm, but I think he is going to get through.