How Appealing Extra

How Appealing Extra

Friday, August 19, 2005

© 2005 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

August 19, 2005


By Brent Kendall
Daily Journal Staff Writer

WASHINGTON - As a young lawyer in the Reagan White House, Supreme Court nominee John G. Roberts Jr. cautioned administration officials against language in a presidential statement saying that the Constitution's Establishment Clause prohibited government support of religion.

"There is no such prohibition, and incorrectly paraphrasing the Establishment Clause in that fashion will be meaningful to students of the controversies surrounding it," Roberts wrote in an August 1984 memo to his boss, White House Counsel Fred Fielding.

The advice came after Roberts reviewed a proposed statement for President Reagan on the signing of the Equal Access Act into law. The act barred public secondary schools that received federal assistance from denying the use of school facilities to religious and political student groups while allowing access to other groups.

Reagan's draft statement said the equal access provisions "represent an appropriate balance among the free speech rights of students [and] the prohibition against government support of religion."

Roberts suggested changing the word "support" to "establishment" to "avoid any suggestion of a gloss on the constitutional text."

Fielding agreed, and in a memo to Richard G. Darman, assistant to the president, said, "A 'prohibition against government support of religion' could be considered quite different from a 'prohibition against government establishment of religion,' and only the latter is clearly barred by the First Amendment."

The legislation had been a priority for the Reagan administration. "It has been the consistent policy of this administration to support the right of students in public secondary schools to meet voluntarily for religious purposes in school facilities during noninstructional periods, a right which this bill recognizes," said Reagan's draft statement.

Duke University law professor Erwin Chemerinsky said Roberts' objections to the original language suggested that he subscribed to a narrow view of the Establishment Clause, a belief that the government only violates the clause if it coerces religious participation.

"He was making an ideological point, not a language point," said Chemerinsky, who was on the losing end of a closely watched Supreme Court case this year in which the justices ruled 5-4 that a Ten Commandments monument could be displayed on the grounds of the Texas state capitol.

Chemerinsky said the memo, when viewed in context with Roberts' work on two U.S. solicitor general amicus briefs in church-state cases, provided further indication that Roberts, unlike his predecessor Sandra Day O'Connor, would side with the conservative justices on Establishment Clause issues.

Roberts worked on the government's amicus briefs in Lee v. Weisman, 505 U.S. 577 (1992), and Westside Community Board of Education v. Mergens, 496 U.S. 226 (1990), urging the court to abandon the so-called Lemon test, which the justices have used to determine when the government violates the Establishment Clause.

In Mergens, the court upheld the constitutionality of the Equal Access Act.

Boalt Hall law professor Jesse Choper disagreed with Chemerinsky on the significance of the memo, saying Roberts' recommendation was "a benign statement."

The author of Reagan's draft statement, he said, had not used legally precise language and Roberts was doing his job as a lawyer in suggesting that the passage be changed.

"It's a neutral kind of thing, particularly for [Roberts'] position" as associate White House counsel, Choper said.

Government supports religion all the time, Choper added. The raging debate, he said, was on the scope of support that should be allowed.

Choper, however, agreed with Chemerinksy that Roberts would likely side with the conservatives on Establishment Clause matters.

The memo was one of 38,546 additional pages of documents from Roberts work in the Reagan White House released by the National Archives on Thursday. That batch brings the total number of pages released to 51,285.

In other documents in Thursday's trove:

• Roberts suggested that one paragraph in a draft statement from President Reagan could be deemed "somewhat controversial" because it "discusses administration efforts to increase opportunities for disabled Americans."

The draft said that the administration was "fighting the insidious practice of denying basic medical care - even food and water - to disabled infants."

Roberts wrote that memo on Sept. 25, 1984, during that year's presidential election. The statement was part of a proposed set of answers to a questionnaire for candidates.

Roberts added that the statement in the proposed questionnaire responses "is general enough, however, to be legally unobjectionable."

• In a memorandum written on Oct. 15, 1984, Roberts criticized another questionnaire response, this time regarding calls from Democrats for homosexuals to be allowed in the military.

The draft response for the Army Times questionnaire quoted the president saying he was "opposed to the conferring of special status upon segments of our population."

Roberts took issue with that statement, describing it as "inartfully phrased."

"Not permitting avowed homosexuals to serve in the military cannot be considered as conferring 'special status' on them as the phrase is used in this sentence," he wrote.

Roberts suggested that the questionnaire response simply state that the president saw no reason to change the current policy, which had recently been upheld by a federal court of appeals.

Daily Journal Staff Writer Lawrence Hurley contributed to this story.

© 2005 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

August 19, 2005


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - John G. Roberts Jr. could have been looking into a crystal ball when he wrote a memorandum 22 years ago speculating on a Supreme Court left short-handed because of the advanced age of its members.

The views expressed in the White House document, released Thursday from the Ronald Reagan Presidential Library, could have been applied equally to the current court before the recent retirement of Justice Sandra Day O'Connor, 75.

She, along with ailing Chief Justice William H. Rehnquist, 80, and Justice John Paul Stevens, 85, were the oldest members on the bench.

The situation was somewhat more serious in the early 1980s, when five of the justice were at least 75.

Writing in 1983, when he was associate counsel to President Reagan, Roberts told White House Counsel Frederick F. Fielding about the danger at that time of losing a six-justice quorum in certain cases as a result of vacancies and recusals.

Roberts was responding to an article that appeared in the Baltimore Daily Record, a legal newspaper. The article's author, Jay L. Spiegel, sent it to the White House.

The man likely to replace O'Connor on the court wrote a page-long note to his superior in which he ruminated on the "fascinating but little-known statutory procedure for dealing with the problem."

Roberts noted that, if there is no quorum and the case is a direct appeal from a district court, the case is remitted, by order of the chief justice, to the Court of Appeals for the circuit where the case came from.

In all other instances, the case is affirmed automatically.

"This latter procedure is the answer to the riddle of how a case can be affirmed by the Supreme Court when five qualified justices believe it should be reversed," Roberts observed.

He added that such a procedure has been used only once, in landmark antitrust case U.S. v. Aluminum Co. of America, 322 U.S. 716 (1944).

Despite his evident enthusiasm for discussing the hypothetical situation, Roberts had little to offer Spiegel in reply.

He suggested to Fielding that he write a letter drawing Spiegel's attention to the existing law and notifying him that his suggestion had been passed on to the Department of Justice "for want of any other idea."

© 2005 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

August 18, 2005

Senator Will 'Wait and See' About Roberts

By Brent Kendall
Daily Journal Staff Writer

WASHINGTON - Senate Democrats who are taking a wait-and-see approach with Supreme Court nominee John G. Roberts Jr. have company on the other side of the aisle from one of the Senate's leading abortion opponents.

Republican Sen. Sam Brownback of Kansas, who will play a prominent role in the Roberts confirmation hearings as a member of the Senate Judiciary Committee, has spoken of Roberts in positive terms but has indicated that he needs to hear more from the nominee on "key issues."

Appearing recently on MSNBC's "Hardball," Brownback, whose religious convictions and strong stances against abortion, same-sex marriage and embryonic stem-cell research have made him a favorite among social conservatives, said it was "yet to be seen" where Roberts stands on abortion and Roe v. Wade.

"I'm in a trust-but-verify stage," Brownback said. "He doesn't have a long written record on this topic. The history has been typically that people, once they go on the courts, they frequently have moved left if they're not well-established on where they are ... on some of these key and core issues."

"[Roberts] talks about an appropriately modest court," Brownback said. "But I think we need to see."

As a member of the Judiciary panel, Brownback will have ample opportunity to question Roberts and will get to do so in front of an attentive national audience - exposure that could help him build more of a national identity as he contemplates a possible run for the White House in 2008.

Brownback's office did not return calls for comment on this story, but observers said the senator likely will be an active participant in the Roberts hearings.

University of Kansas political science professor Allan Cigler said he expects Brownback to be "aggressive without being negative."

Cigler said that Brownback won't likely ask Roberts specifically about overturning Roe but instead will find other ways to bring up abortion-related matters.

"I think Brownback wants to be on the record of asking questions that get on those issues," Cigler said.

He said Brownback "very much wants to have a judge who basically shares the values he shares, and he shares values close to the Christian Right on most political issues."

"On a whole variety of issues," Cigler said, "he's trying to position himself to be a spokesman for that wing of the party."

"I think he views this as a potential national-stage kind of thing," Cigler added.

Assigned to the Judiciary Committee at the end of last year, Brownback is one of the panel's two newest members, joining committee veterans like Sens. Orrin Hatch, R-Utah, Edward Kennedy, D-Mass., and Joseph Biden, D-Del.

But in a short time, Brownback has used his position to highlight his dismay with the abortion-rights landscape that Roe created.

In June, he chaired a subcommittee hearing titled "The Consequences of Roe v. Wade and Doe v. Bolton," saying, "To put it simply, Roe was a mistake - a very, very costly one."

"The legally sanctioned extinguishing of ... millions of innocent lives is a gross injustice in itself," Brownback said.

When rumors swirled that President Bush might nominate longtime friend Alberto Gonzales to the high court - a prospect frowned on by social conservatives skeptical of Gonzales' views - Brownback sought an active role in the nomination debate by calling for a meeting with the attorney general.

"I will not be supportive of any nominee who is not clear about his or her view of the Constitution," Brownback said at the time.

The meeting never took place.

Roberts enjoys substantially more support than Gonzales from social conservatives, though his views on abortion are murkier than those of some other nominees reportedly on Bush's shortlist.

While serving as U.S. deputy solicitor general, Roberts signed the government's 1990 legal brief in Rust v. Sullivan, 500 U.S. 173 (1991), which urged the high court to overturn Roe. The brief echoed the position that the Justice Department took in previous cases where Roberts was not involved.

As a federal appeals-court nominee in 2003, Roberts told the Judiciary Committee that Roe was settled law, saying that nothing in his personal views would prevent him from applying it.

However, unlike an appeals-court judge, Roberts as a Supreme Court justice would not be bound by that precedent.

Roberts-related documents released in the past few weeks suggest that he looked on Roe unfavorably.

Cigler said Brownback will have to walk a careful line when questioning Roberts because he needs to maintain good relations with the Republican leadership and President Bush and cannot push Roberts in a way that could hurt his nomination.

Melvin Kahn, a political scientist at Wichita State University, agreed but said that Brownback would not avoid asking probing questions just to please his party.

"I don't think that he's going to be a shrinking violent on this," Kahn said. "I don't think he bows to pressure. He's his own man. ... He comes through as a person who has a voice of his own."

The hearings, Kahn said, could indeed boost Brownback's stature for a presidential run.

"My impression from the last Gallup Poll I saw is that he has very little national name recognition," Kahn said. "I would agree with the premise that this is an opportunity for him."

Like other potential presidential contenders, Brownback has not given firm indications that he plans to run in 2008, though he is exploring his options and makings visits to Iowa, New Hampshire and South Carolina - important early states during the presidential primary season.

Brownback told a Topeka, Kan., newspaper in June that he faced an uphill climb in making his name known nationally.

"It's such a long race that you've kind of got to line up way early, particularly if you haven't been out in that field before," he said.

Opportunity or not, Patrick Trueman, senior legal counsel for the conservative Family Research Council, said he didn't think Brownback would try to use the Roberts hearings as a forum to boost his '08 fortunes.

However, he added, "Sam Brownback is who Sam Brownback is. His personality will probably come out. His conservative leanings will come out, just as [Vermont Democrat] Sen. Leahy's personality and leanings will come out."

After meeting with Roberts on July 25, Brownback told reporters that the nominee appeared to favor a more literal interpretation of the Constitution.

However, he also said he wanted to know more about Roberts' constitutional views as well as his views on the role of courts in society.

The men did not discuss Roe, nor did they discuss their shared religious beliefs: both are Catholic, Brownback through a recent conversion under the guidance of the Rev. John McCloskey, a prominent Catholic traditionalist in Washington, D.C.

Brownback did recommend that Roberts read passages in the Book of Wisdom, which Roman Catholics include as part of the Old Testament.

"There's a chapter about how we are judged at the end," Brownback said, according to the Associated Press. "Those who are judges and leaders are held to a higher standard, that what we do be the right thing to do and that we apply justice."

"This is a very deeply religious man," said Michael Horowitz, a senior fellow at the conservative Hudson Institute who has worked with Brownback.

"Here is a guy who shatters the caricatures of the so-called Christian Right," Horowitz added.

He said Brownback had become "the great human rights champion in the Senate," working across party lines on legislation to combat human trafficking, improve human rights in North Korea and end crimes against humanity in Darfur, Sudan.

"He cares for the abortion issue for the same reason he's out there as the chief sponsor of the North Korea Human Rights Act or the Trafficking Victims Protection Act," Horowitz said.

He said he was unsure how Brownback would approach the upcoming Roberts hearings.

"It's not like Brownback is some bomb-thrower. He accommodates when he can," Horowitz said. "But I wouldn't even dream of predicting what kinds of questions he would ask or how intensely he would ask them."

Wednesday, August 17, 2005

© 2005 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

August 17, 2005


Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Even if Supreme Court nominee John G. Roberts Jr. is the fire-breathing conservative most liberals fear, some observers believe that his close affinity with the institution, forged through a lifetime's obsession and 25 years of arguing cases before it, could have some impact on his jurisprudence, should he be confirmed.

This is, after all, a man who is so taken with the history of the court that he touched a statue of Chief Justice John Marshall before every oral argument he gave.

This is also a deeply conservative lawyer whose respect for precedent is such that he described Roe v. Wade as the "settled law of the land" when he appeared before the Senate Judiciary Committee in 2003 after being nominated to the U.S. Court of Appeals for the District of Columbia Circuit.

Having known Roberts since they were at Harvard Law School together, Georgetown University law professor Richard J. Lazarus confirmed that his friend's interest in the court dates to at least that time.

"Someone who is like John, achieving so much in law school, can't help but be focused on the court," Lazarus said. "It's the pinnacle of our profession."

Although law students commonly take an interest in the Supreme Court and its traditions, he, said Roberts had a deeper passion, emanating in part from his fascination for American history in general, that has remained with him.

Roberts' close connection with the court before his nomination contrasts sharply with current conservative justices with whom he is expected to be aligned.

Antonin Scalia and Clarence Thomas, for example, both worked in public service for much of their early careers, and Scalia had a stint in legal academia.

Neither had Roberts' day-to-day involvement with the court.

As has been widely chronicled, Roberts has argued 39 cases before the court, some while in private practice and some during his stint in the U.S. solicitor general's office in the George H.W. Bush administration.

Scrutiny of Roberts' professional activities also show him to be an unusually active participant in several nonpartisan organizations whose aims are to either promote the history and tradition of the court or to improve the quality of appellate advocacy before it.

Furthermore, Roberts has made no outspoken public comments on controversial issues, as had Robert H. Bork, whose 1987 nomination stalled in large part because of his many on-the-record comments.

Roberts' views on abortion, for example, remain unclear. He may have helped write a brief arguing that Roe v. Wade was bad law when he worked in the U.S. solicitor general's office in 1991, but in 2003 he told the Senate Judiciary Committee that he would have no problem respecting the precedent set by the decision.

Roberts also has gone to great lengths to distance himself from the Federalist Society, the group of right-leaning lawyers that most budding ideologically conservative attorneys can't wait to join.

So far, documents released by the National Archives certainly have shown Roberts to be in tune with Reaganite conservative philosophy, but there has been no smoking gun for Democrats or liberal interest groups to seize on.

Although no one disputes that Roberts is a conservative, some argue that his respect for the court may have some bearing on his judicial philosophy.

Emory University law professor David Garrow believes that, when viewed alongside Roberts' 25 years in Washington and 39 cases argued before the court, his close affinity with the institution emphasizes that the nominee is the ultimate Supreme Court insider.

That is to say, he is one of a handful of appellate advocates in Washington who are "elite Supreme Court regulars" well-versed in the minutiae of court tradition and etiquette, according to Garrow.

"I think it further underscores that Roberts is first and foremost a professional lawyer and not a political ideologue," he added.

Leading Supreme Court advocate Thomas C. Goldstein said that Roberts reminds him of Chief Justice William H. Rehnquist.

"They care very much about the Supreme Court as a place, an institution," Goldstein said.

However, Roberts' interest in the high court should not be interpreted as a sign that he thinks the courts should have greater power, Goldstein warned.

"He's been very clear on his sense of the need for a limited judicial role," Goldstein said.

Garrow agreed.

He said he believes Roberts' membership in several court-boosting groups - as well as his involvement on the side of the plaintiffs in the 1996 gay-rights case Romer v. Evans - emphasizes that he is not primarily a political animal.

Not everyone is convinced by that argument.

Elliot Mincberg, vice president of liberal advocacy group People for the American Way, who is a member of some of the same professional groups as Roberts, conceded that Roberts has more experience with the court than most nominees in the past.

But Mincberg said this would not necessarily affect the way Roberts would rule on a particular case.

"He has an understanding of the history and traditions of the court, but his views on applying that is the $64,000 question," Mincberg said.

He added that respect for the court doesn't necessarily translate into a respect for court precedents.

Mincberg noted that "there is a precedent for overturning precedents."

He also believes that documents that have not been released from the archives could shed more light on Roberts' judicial inclinations.

Robert's professional activities, as outlined in the questionnaire he returned to the Senate Judiciary Committee, give groups like People for the American Way little ammunition to attack him.

He has been an active member of the Supreme Court Historical Society and other groups, such as the American Academy of Appellate Lawyers and the Edward Coke Appellate Inn of Court, both of which have a stated mission to promote appellate advocacy.

As Mark I. Levy, who heads the appellate advocacy group at Washington firm Kilpatrick Stockton, noted that the inn and the academy are invitational only and number many prominent attorneys among their members.

"That tells you something about John's standing with his peers," Levy said.

But Levy, who is a member of both, stressed that membership has no bearing on Roberts' political views.

Both Mincberg and Jay Sekulow, chief counsel of the right-leaning American Center for Law and Justice, are, for example, members of the inn, Levy said.

What is clear, according to officials at several of these groups, most of which are based in Washington, D.C., is that Roberts does more than simply pay his dues.

"Judge Roberts has been a very active supporter of the society," said Frank C. Jones, the Macon, Ga.-based president of the Supreme Court Historical Society.

The society, founded in 1974, has a mission to expand "public awareness of the history and heritage of the Supreme Court," its Web site says.

All of the current justices are active members, according to executive director David T. Pride, although he refused to comment on who is most interested in the history of the court.

Roberts' main involvement has been to volunteer every year since 1995 for a historical society program in which high-school teachers from around the country are brought to Washington to learn about the court and constitutional law.

He also gave the group's annual speech in 2004.

Pride said he did not remember any instances of any of the current justices volunteering for the summer program either before or after they were nominated, although Scalia did give a speech for members when he was a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

Roberts also has a strong interest in improving the quality of appellate advocacy.

David Herr, a Minnesota lawyer who is president of the American Academy of Appellate Lawyers, described Roberts as "among the more active members," although he has not served on any committees.

The speech that Roberts gave to the Supreme Court Historical Society last year perhaps demonstrates most vividly his dedication to both the court and the art of appellate advocacy.

Later published in the society's Journal of Supreme Court History, the speech is titled "Oral Advocacy and the Re-Emergence of a Supreme Court Bar."

Written when he had been a judge for a year, Roberts' address exhibits the obsession for detail of a statistician in discussing the standard of oral argument before the current court.

Roberts explained, for example, that he was able to determine after conducting his own research that the number of questions asked by justices during oral argument has "remained fairly constant" over recent years.

This involved examining and comparing the first and last cases of each of the seven argument sessions in the 1980 and 2003 terms, he explained.

Roberts also calculated that the side that loses is usually the one that is asked the most number of questions.

"[T]he secret to successful advocacy is simply to get the court to ask your opponent more questions," he concluded, perhaps with tongue in cheek.

In addition to speaking up about the need to improve appellate advocacy, Roberts also has been actively involved in several training programs, including one organized by Georgetown University Law Center's Supreme Court Institute, which is run by Lazarus.

As Roberts explains in the questionnaire, he has "regularly participated" in moot-court programs designed to improve the advocacy of lawyers appearing before the Supreme Court.

In his historical society speech, Roberts noted that such programs, in addition to the establishment of solicitor-general offices at state level, have enhanced the standard of oral argument.

All of these professional activities may not help Roberts get confirmed, but at least one group of people may be impressed: his eight prospective colleagues.

Garrow said the sitting justices would welcome such an addition to their ranks, comparing him favorably with Justice David H. Souter, who had little federal legal experience when he was nominated in 1990 and - by his own admission - initially struggled.

"They want someone who will be fully up to speed," Garrow added.

As to whether Roberts' lifelong love affair with the court will have any bearing on his jurisprudence, Mincberg perhaps speaks for everyone in sounding a cautious note.

"He is certainly very familiar with advocacy before the court, no question about that," Mincberg said. "What effect that will have on him is harder to tell."

Thursday, August 04, 2005

© 2005 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

August 4, 2005

'Hurry Up and Wait' Marks Roberts Battle

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - When political activists have spent years preparing for a controversial Supreme Court nomination, what do they do when the expected pitched battle doesn't break out immediately?

They wait.

They prepare.

With a month to go until the confirmation hearings for Supreme Court nominee John G. Roberts Jr., August looks set to be dominated by tactical maneuvering as the massed ranks of conservative and liberal forces circle each other suspiciously.

"They are standing on the battlefield. They are all arrayed for the war. The troops are expecting them to do something," said Richard Davis, a political science professor at Brigham Young University.

The problem for the liberal interest groups is that so far they have little evidence that Roberts is - or is not - the hard-line conservative activist judge whom they were expecting President Bush to nominate.

"They don't want to spend their money if it results in nothing," Davis noted.

With that in mind, liberal groups are attempting to discover whether Roberts is a moderate conservative in the mold of departing Justice Sandra Day O'Connor or whether he is more akin to the more-extreme Justice Antonin Scalia.

With no clear evidence available either way, most Democrats in the Senate have been subdued in their reaction to Roberts' nomination, careful to praise his legal ability but stating the need for further investigation into his judicial philosophy.

The position taken by Sen. Dianne Feinstein, a member of the Judiciary Committee, is perhaps representative of her colleagues.

"I will keep my powder dry until the due diligence is completed," Feinstein said in a statement soon after the nomination.

Despite the circumspect stance taken by Feinstein and others, hostilities could erupt at any time.

Attempting to find any chinks in Roberts' armor, the Democrats are particularly keen to focus on answers that he gave in the detailed questionnaire that he returned to the Senate Judiciary Committee Tuesday.

By 1 p.m. Wednesday, fewer than 24 hours after the questionnaire was submitted, they had summoned reporters to highlight what they claim are inconsistencies in Roberts' views concerning judicial restraint.

Staffers on the Judiciary Committee said that an answer he gave in the questionnaire may be at odds with what he wrote in a memorandum in 1982, when he was a special assistant to Attorney General William French Smith.

And it's not just Democrat staffers who are searching for ammunition to use against Roberts.

Liberal interest groups like People for the American Way and Alliance for Justice also are researching Roberts' record frantically, hoping to find a smoking gun that would turn public opinion against him.

On the other side, conservatives say they are not taking anything for granted.

"I don't think it's possible that nothing will happen," said Sean Rushton, executive director of the Committee for Justice, an organization set up to support President Bush's judicial nominees.

At this point, Rushton and his allies are content to sit back and wait, hoping that Roberts proves himself a stealth candidate who will glide through his confirmation hearings, setting the tone for future Bush appointments.

"There are still a lot of critical junctures here," Davis said.

The fact that the nomination battle did not spark immediately into life was unexpected, even by those who are actively involved.

Rushton admitted that he was "a little surprised" by the muted response to Roberts' nomination from Democrats and liberal groups alike.

But he believes this was only because they had not been expecting Roberts to be nominated and were "off-balance."

As these groups regroup, they will "keep up the drum beat" over the summer, Rushton predicted.

In the opposing camp, Ralph G. Neas, president of People for the American Way, conceded that the response to Roberts' nomination may not have been what some observers expected.

Even at this stage, Neas' organization has not yet decided whether it will oppose or support Roberts, he claimed.

"Our first aim was not to commit ourselves fully," Neas said.

Another contributing factor to the low-key nature of the confirmation battle so far was the timing of the nomination, coming as it did just before Congress' summer recess, noted Mark H. Gitenstein, who was chief counsel for the Democrats on the Senate Judiciary Committee in the 1980s.

Gitenstein suggested that Congress' being on recess may well "decrease the heat" of the Roberts-related rhetoric, at least until Labor Day.

What both sides agree on is that after, the initial phony war, the political struggle in the Senate will be intense, although at this point Roberts seems likely to prevail.

The dynamics of the confirmation process would, however, all change if Democrats or their supporters are able to uncover anything controversial, whether it be from papers dating back to Roberts' previous jobs in the Reagan and George H.W. Bush administrations or from some other, unknown source.

The detailed questionnaire that Roberts returned to the Senate Judiciary Committee Tuesday also is being studied closely by the Democrats.

"They are going to be poring through that for something they can use," Davis said.

Rushton said he expected Roberts to be confirmed, whatever happens, but he stressed that there is no room for complacency because the number of votes the nominee receives could have political implications.

If Roberts draws overwhelming support in the Senate, that could pave the way for a more-conservative nomination next time, he said.

Of course, the fact that no smoking gun has been uncovered does not mean that groups on both sides are not trying to shape the public debate during August.

As further details emerge about Roberts' record during his time at the White House under President Reagan and at the solicitor general's office under the first President Bush, liberal groups hope to seize on any perceived weaknesses.

Neas hinted that media reports about Roberts' involvement in the White House's approach to civil rights during his stints in the two administrations would be studied very carefully.

"All of a sudden, someone who seemed to be above the fray seems to be a top political appointee," Neas said.

He also claimed that Roberts was "at the epicenter" of an attempt during the 1980s to "turn back the clock on civil rights."

With this in mind, People for the American Way plans to target senators in 20 battleground states during the next few weeks, Neas said.

Activists will contact the senators and ask them to seek further information about Roberts' previous positions.

"It's a public-education period," Neas said of the recess. "We are certainly sharing what we know."

Another liberal group, Alliance for Justice, announced Friday that it and other liberal organizations, under the banner, are launching a national TV campaign called "Right to Know." It calls for the White House to provide documents from Roberts' government jobs.

None of this is any surprise to Rushton.

He fully expects liberal groups to unleash any weapons they can find, even resorting to what he called "innuendo on the personal front."

His prediction may be coming true. People for the American Way issued a statement late last week in which it described Roberts as an "ideological infighter."

But Rushton also pledged a conservative counterattack, using advertising and grass-roots support to put pressure on Democrats in so-called "red," conservative-leaning states to support Roberts.

Senators in that bracket include members of the "Gang of 14" moderate Republicans and Democrats, such as Sen. Ben Nelson, D-Neb.

"The concept will be 'As sensible Democrats, stand up and challenge the liberal interest groups,'" Rushton said of the advertising campaign.

One of the conservative groups, Progress for America, has said it is willing to spend $18 million to get its message out.

"Urge the Senate to give Judge Roberts a fair up-or-down vote," the latest ad states.

Progress for America also set up a Web site devoted to Roberts,, which contains biographical information and encourages viewers to lobby their local senators in support of the nominee.

Gitenstein said most of this activity will take place "beneath the surface" of the public debate, with most people unaware of what is going on.

The research on Roberts' record also will continue behind the scenes as preparations are made for the hearings.

Davis observed that activists on both sides may not be at battle stations but they have a war to fight.

"It isn't as if they are going to fade away," he said. "It's a truce."

A truce that will end on Labor Day, if not before.