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Judge John Roberts served under Ronald Reagan in the White House counsel's office, and the first President Bush as deputy solicitor general in the Justice Department. Yet he had a non-dogmatic reputation on the bench, and a stellar intellect that impressed even Times reporters.
Still, the newspaper dwelt heavily on his membership in the conservative network of lawyers, The Federalist Society, which certainly got more intense coverage than Ruth Bader Ginsburg's history of activism for the ACLU. The death of Chief Justice William Rehnquist in early September resulted in President Bush re-nominating Roberts to take the place of Rehnquist as Chief Justice, instead of replacing O'Connor as an Associate Justice.
The Times' coverage of Roberts contained a total of 33 conservative labels, a figure which actually understates the tone of coverage, leaving off many instances in which Roberts' conservative supporters or his alliance with the conservative movement was discussed, or his membership in the “conservative legal group” The Federalist Society, or liberal fears that he would tilt the court in a more conservative direction.
Roberts was identified as conservative from the start, in a friendly “Man in the News” profile by Neil Lewis on July 20, saying Roberts “has helped strengthen the conservative hold on the federal judiciary.” The same day, Linda Greenhouse found that Roberts had a “firm identification on the conservative side of the legal spectrum,” while Todd Purdum introduced Roberts as a judge with “a distinguished resume and a conservative but enigmatic record.” On July 24 Elisabeth Bumiller damned Roberts with faint praise as a “nondogmatic conservative.”
Quite slanted was David Rosenbaum's contribution on July 28, 2005, “An Advocate for the Right,” running down Roberts' super-duper conservative positions:
“On almost every issue he dealt with where there were basically two sides, one more conservative than the other, the documents from the National Archives and the Ronald Reagan Presidential Library show that Judge Roberts, now of the United States Court of Appeals for the District of Columbia Circuit, advocated the more conservative course. Sometimes, he took positions even more conservative than those of his prominent superiors.”
As noted before, the headline to that story, “An Advocate for the Right” was in stark contrast to the one that greeted Ruth Bader Ginsburg's nomination on June 27, 1993: “Balanced Jurist at Home in the Middle.”
Adam Liptak and Todd Purdum admired Roberts as an “affable, ambitious and frankly conservative intellectual” in a July 31, 2005 profile, noting his memos were “terse, lucid and even elegant.” One huge hiccup in the paper's relatively benign coverage of the Roberts nomination was uncovered at the Drudge Report on August 4, 2005, which blared a scoop that Times reporters had been snooping around the adoption records of Roberts' four- and five-year-old children. According to an August 5 report by Brit Hume of Fox News:
“The New York Times has been asking lawyers who specialize in adoption cases for advice on how to get into the sealed court records on Supreme Court nominee John Roberts' (search) two adopted children. There is no indication The Times had any evidence there was anything improper in the family's adoption of five-year-old Josie and four-year-old Jack, both born in Latin America. Sources familiar with the matter told FOX News that at least one lawyer turned the Times down flat, saying that any effort to pry into adoption case records, which are always sealed, would be reprehensible. A Times spokesman said the paper was simply asking questions, and that only initial inquiries had been made.”
While the Times found nothing but smooth sailing for Clinton nominees Ginsburg and Breyer, the Times played up possible roadblocks to Roberts' nomination after the release of documents detailing his work in the Reagan administration. On August 17, David Kirkpatrick foresaw “a possible turning point” in the nomination fight, with Democratic Sen. Pat Leahy called Judge Roberts “far right wing” and Sen. Ted Kennedy said Roberts was “on or beyond the outer fringe of that extreme group” of Republicans.
On August 19, Todd Purdum and John Broder characterized the nominee as a “faithful foot soldier in the conservative revolution that Ronald Reagan brought to Washington.” But Times reporters were also charmed by the Reagan papers, as shown in this August 20 headline: “As a Man of Letters, Roberts Showed Practicality and Humor.” Anne Kornblut examined his Reagan-era memos and concluded August 29 that the nominee boasted “an exceptional vocabulary and command of literature.”
Upon the death September 3 of Chief Justice William Rehnquist, Bush named Roberts as his choice to replace Rehnquist as Chief Justice, instead of replacing Justice O'Connor as an Associate Justice. Bush could have instead replaced Rehnquist with a sitting conservative justice like Antonin Scalia, and his decision was seen as releasing some of the partisan pressure at the time, since Roberts' ascension to replace the conservative Rehnquist would not drastically alter the balance of the court (that would wait for Bush's next nominee, Samuel Alito).
On the eve of the Roberts hearings (which began on September 12, 2005) Washington reporter Sheryl Gay Stolberg provided a stark slant in her capsule profiles of the members of the Senate Judiciary Committee who would hear the judge's testimony. While liberal, pro-abortion Republican Sen. Arlen Specter was a “maverick” “reviled by the right,” Sen. Sam Brownback of Kansas was a “darling of conservatives,” Sen. Tom Coburn of Oklahoma “conservative,” and Sen. Jon Kyl of Arizona a “pro-business conservative.” Meanwhile, across the aisle, Sen. Ted Kennedy of Massachusetts was not a liberal but merely a “Democratic elder statesman.”
Roberts made a very impressive performance in the hearings, leading Sheryl Gay Stolberg-and David Kirkpatrick to praise “Judge Roberts' intellect and impeccable resume,” on September 18, as the Times ran an editorial urging the Senate to vote no on his nomination.