Brownback Outlines Terms for Next Pick

Posted September 14, 2005 at 6:49pm

Sen. Sam Brownback (R-Kan.) said Wednesday that he would like the next Supreme Court nominee to have a detailed track record opposing the Roe v. Wade decision, as opposed to the relatively limited record on abortion issues held by Judge John Roberts.

While Brownback expects to support Roberts as President Bush’s pick for chief justice of the United States, he warned that he and many in the conservative movement would like the nominee to replace retiring Associate Justice Sandra Day O’Connor to have a clearer record of opposing abortion rights than Roberts.

“I’d like to see it take place,” Brownback said in between his first and second round of questioning of Roberts at the Judiciary Committee’s confirmation hearings.

While Democrats and liberal activists have grown increasingly weary of Roberts’ refusal to answer detailed questions about Roe and the right to privacy, Brownback voiced frustration of his own at the nominee’s unwillingness to go much further in response to GOP questions on the matter.

“Democrats should be happy,” Brownback said, only half-jokingly.

Brownback’s veiled criticism of Roberts’ record on the divisive issue of abortion could resonate for months, as the Kansan is considering running for the GOP presidential nomination in 2008 as the conservative anti-abortion candidate.

In the short run, it could make the selection of the next nominee to the high court even more difficult for Bush, as some Democrats appear to have withheld their sharpest political fire on Roberts and instead are concentrating on the nominee who succeeds the swing-voting O’Connor.

Brownback said Bush owes it to the millions of conservative voters who heard him say he would pick nominees similar to Justices Antonin Scalia and Clarence Thomas — two favorites of anti-abortion activists.

“It really is what the election was about, and Bush ran on it and Kerry did not,” Brownback said of Sen. John Kerry’s (D-Mass.) presidential campaign.

To date, the Bush White House has done little if any consultation with Senators on the second Supreme Court choice. Aides to Judiciary Chairman Arlen Specter (R-Pa.) said they are unaware of any substantive conversations Specter has had on the topic with White House officials.

And there has been no indication from the White House when the next pick will be announced.

Edward Gillespie, the former Republican National Committee chairman who is serving as an unpaid White House adviser for the Roberts nomination process, said that the views of Brownback and many other Senators will be heard in the selection process, noting that more than 70 Senators were consulted before Roberts’ nomination was announced.

“In the consultation process, I’m sure those views will be heard,” he said of Brownback.

Gillespie, who is not involved in the selection process for the second pick, said he expects the president to live up to his pledge to pick justices “in the mold of Scalia and Thomas.”

“I have no doubt the president will do what he said he would in two presidential elections,” he said.

Roberts has been an active lawyer since the early 1980s, first in the Reagan and Bush administrations and then in private practice before taking a seat on the U.S. Court of Appeals for the D.C. Circuit. However, his writings on Roe v. Wade have been limited, leaving his liberal opponents with just a couple of pieces of evidence to presume that he would be an anti-abortion justice.

In particular, they have pointed to his tenure in the Solicitor General’s office, when he signed a 1991 brief in a pivotal Pennsylvania abortion case saying that Roe v. Wade was wrongly decided.

In addition, in a memo from his early days in the Reagan administration, he referred to a “so-called” right to privacy.

Under questioning from Judiciary Chairman Arlen Specter (R-Pa.) and others, Roberts seems to have left some wiggle room concerning how he would rule on such cases. Most conservatives remain pleased with Roberts, but many still fear his appointment could turn out as badly for conservatives as President George H.W. Bush’s appointment of Justice David Souter, who eventually voted to uphold Roe v. Wade when the Pennsylvania abortion case, Planned Parenthood v. Casey, was decided in 1992.

In his questioning Wednesday morning, Brownback sought to elicit a bit more on his views on the matter, asking the nominee: “Could you state your view as to whether the unborn child is a person or is a piece of property?”

Roberts declined to answer the question, saying that the issue may come before him on the court and he didn’t want to give any hints as to how he’d rule.

Manuel Miranda, a former Senate GOP leadership aide, sent conservative activists an e-mail Wednesday warning that the second pick should come from a crop of candidates who have either ruled on the issue on state courts or written on the matter. He noted that William Rehnquist won confirmation as chief justice in 1986 even though he was one of two justices to rule against Roe in 1973.

“When the President promised he would appoint judges like Scalia and Thomas, it was not their views on the Clean Sewers Act that he was trying to signal to us — it was code for Roe. He knew it, we knew it,” wrote Miranda, who resigned his Senate post 20 months ago during an internal chamber investigation about whether he had improperly accessed Judiciary Committee memos.

Miranda now runs Third Branch, a group devoted to confirming conservative jurists to the federal bench.

Brownback said that he has not spoken to White House officials about the next Supreme Court selection, but indicated that he’s made plain that he wants someone with a clearer record on Roe.

“I have communicated that, but I have not talked directly to [White House] individuals,” he said.

As he closed his second round of questioning with Roberts on Wednesday evening, Brownback told the nominee that there was much pressure on him. “A lot of hopes and prayers are riding on you,” he told Roberts.

“May God bless you,” Brownback added.