The Nine [155]
In the mainstream news media, which were still largely working off an obsolete model of the confirmation process, these memos were generally treated as problems for Roberts’s nomination (although manageable ones, to be sure). The governing idea behind the news coverage was that Roberts, like Bork, risked defeat if he was seen as too conservative. But the truth was precisely the reverse—that the only threat to a Bush nominee to the Supreme Court was if he or she was seen as not conservative enough. As Manuel Miranda wrote in the online Wall Street Journal about Roberts’s Reagan-era memos, “One sentiment is widely shared among conservatives: What a relief. Judge Roberts’s writing as a young lawyer show him to be a solid constitutionalist.”
Bush needed good news so badly that he acted with a degree of haste that was nearly disrespectful to Rehnquist. At 8:01 a.m. on September 5, Labor Day, less than forty-eight hours after Rehnquist died, Bush summoned the news media to the Oval Office to announce that he was nominating Roberts to be the seventeenth chief justice of the United States. “For the past two months, members of the United States Senate and the American people have learned about the career and character of Judge Roberts,” Bush said. “They like what they see. He’s a gentleman. He’s a man of integrity and fairness.”
The continuing fallout from the hurricane meant that Roberts’s hearings received relatively little attention, especially since the outcome was a foregone conclusion. (They began slightly later than originally planned because Roberts was now being considered for chief, not associate, justice.) In his opening statement, on September 12, Roberts said, “A certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.” Roberts was right about the motivations of baseball fans, if not Supreme Court justices. In truth, unlike umpires, Supreme Court justices do make the rules, and their job amounts to far more than a mechanical process of applying them.
As to how Roberts himself would apply the vague commands of the Constitution, he was careful not to commit himself. Under questioning from Arlen Specter, Roberts said that Roe was “settled as a precedent of the court, entitled to respect under principles of stare decisis,” but he also pointed out that the justices sometimes reversed their own precedents. Roberts wouldn’t say how he would vote on Roe. Like all other nominees, Roberts dodged making commitments, but his winning manner and broad erudition were manifest. He remembered the names of old cases with ease and summarized the arguments on a wide variety of constitutional controversies. He quoted the Federalist papers from memory. Senator Dick Durbin, an Illinois Democrat, spoke for many when he said Roberts “retired the trophy” for outstanding performance by a judicial nominee. On September 22, he was confirmed by the Judiciary Committee by a vote of 13–5. A week later, he was confirmed by the full Senate by a vote of 78–22.
Shortly after Bush nominated Roberts for chief justice, the White House announced that the president