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Spokane, Washington  Est. May 19, 1883

Politics of confirmability pose danger

Anita F. Hill Special to Newsday

In his nomination of John G. Roberts for the Supreme Court, President Bush has put forward a highly regarded lawyer who reportedly is a quite likable individual. Roberts’ supporters and independent analysts cite a lifetime of achievement as the reason he should be confirmed.

Roberts worked in both President Reagan’s and the first President Bush’s administrations before going into private practice. Republicans are counting on the fact that Democrats will have a hard time voting against someone with government and private practice experience who is widely recognized within the Washington, D.C., Beltway as one of the country’s top appellate attorneys. As Peter Canellos of the Boston Globe wrote, Roberts’ career reads like “a 1950s Boys’ Life primer on how to prepare for the Supreme Court.”

But was John Roberts chosen because he’s the best choice for the court or because he might be confirmed easily? And why not choose a woman to replace retiring Justice Sandra Day O’Connor, the first female on the Supreme Court? Or use this as an opportunity to nominate the first Latino to the court?

Not surprising, the answer to these questions has to do with the politics of confirmability. One thing is certain: If nominees are selected based on the very narrow and elite credentials that brought us John Roberts, a wide range of equally qualified, more diverse candidates will never be considered.

We don’t know much about Roberts’ political ideology, but we do know that his career has been built on membership in increasingly elitist institutions that include few females and Latinos or other ethnic minorities. From his education at Harvard University and Harvard Law School to his role as chief of a D.C. firm’s appellate practice, Roberts placed himself in increasingly distinguished and exclusive circles.

His positions as managing editor of the Harvard Law Review and a clerk for then Associate Justice William Rehnquist are impressive. But the selection processes for each of those positions have their critics. By 1994, years after Roberts’ clerkship, Rehnquist had hired a total of 73 clerks. Only eight were female.

Before Roberts’ appointment to the D.C. Court of Appeals in 2003, he was included in a small circle of top Supreme Court litigators that included New York’s Floyd Abrams and Washington, D.C.’s Robert Bork – but very few women or minorities.

Had these “extraordinary” credentials set the standard for judicial nominations in 1982, Sandra Day O’Connor would never have been appointed. She never clerked. She never worked for a president. She never served as a federal judge.

Ideology notwithstanding, even Circuit Judge Edith Clement, whose name surfaced as the front-runner prior to Bush’s official announcement, would not survive this standard, despite the fact that she has more judicial experience than Roberts. The first Latino U.S. attorney general, Alberto Gonzales, was also rumored to be a potential nominee. But like O’Connor’s, his resume is missing a clerkship and his judicial experience was state, not federal.

With O’Connor on the bench, the Supreme Court was the most diverse in its history. If confirmability through the Roberts “primer” becomes the rule, it is not hard to imagine a return to an all-white-male Supreme Court.

The nomination process might have become so politicized that the only secure nomination is someone who is an ultimate Washington, D.C., insider, liked by both sides. If so, it misses a chance to reflect the experiences of the vast majority of Americans. Moreover, a gold standard for judicial selection based on exclusivity appears to contradict the values of ever-expanding opportunities we espouse.

Roberts’ professional endeavors represent very limited legal experiences that do not appear to be balanced by other life experiences. I hope the Judiciary Committee members will try to determine whether Roberts has the breadth of experience that will help him understand the law beyond what is sometimes a very narrow text.

I don’t know enough about John G. Roberts’ positions on any issues to pass judgment on his suitability for the court. The concerns I have today are directed more to the process and standards for the nomination. For if confirmability politics continue to control the Supreme Court selection process, it will likely change the face of the court for the foreseeable future.