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Analysis: Supreme Court Confirmation Can Be Politically Divisive

The Senate is scheduled to begin confirmation hearings on September 6 for Judge John Roberts, President Bush's choice to replace retiring Supreme Court Justice Sandra Day O'Connor. If all goes smoothly, the president's Republican allies in the Senate believe Judge Roberts will be confirmed in time for the beginning of the next high court session in early October.

Throughout U.S. history, presidents have generally gotten their way when it comes to Supreme Court appointments.

But in 1987, the Democrat-controlled Senate rejected President Ronald Reagan's nomination of federal Judge Robert Bork to the high court after Democrats criticized him as a radical conservative.

George Washington University Law School Professor Jonathan Turley says ever since, Supreme Court nomination battles have increasingly looked like political campaigns.

"The idea of having a political campaign for a nominee is something very recent in our history. And it pretty much comes from the fight over Judge Bork," he said. "Robert Bork was a very conservative nominee who was put forward to the Senate and liberal groups went after him with a vengeance and ultimately defeated him. The conservatives have been licking that wound ever since it happened."

Judge Bork blamed Democrats for distorting his record during his confirmation hearings. He recently told the public affairs cable channel CSPAN that his 1987 nomination defeat has lessons for the upcoming battle over Judge Roberts.

"That any record can be misrepresented and it will be this time, too," he said.

Four years after the fight over Judge Bork, another Supreme Court confirmation battle took center stage.

President George Bush nominated federal Judge Clarence Thomas to a high court vacancy and he appeared set for confirmation until a former government co-worker and law school professor, Anita Hill, accused him of sexual harassment.

"My working relationship became even more strained when Judge Thomas began to use work situations to discuss sex," said Ms. Hill. "After a brief discussion of work, he would turn the conversation to a discussion of sexual matters. His conversations were very vivid."

The accusations drew an angry denial from Judge Thomas, only the second African-American nominated to the Supreme Court. He accused his opponents of trying to conduct what he called a "high-tech lynching" in front of a national television audience.

"I have suffered immensely as these very serious charges were leveled against me," he said. "I have been wracking my brains and eating my insides out trying to think of what I could have said or done to Anita Hill to lead her to allege that I was interested in her in more than a professional way and that I talked with her about pornographic or X-rated films."

Justice Thomas was confirmed by a vote of 52 to 48.

In the wake of the battle over Justice Thomas, President Bill Clinton's two nominees to the Supreme Court, Ruth Bader Ginsburg and Stephen Breyer, were confirmed with relative ease.

The last Supreme Court vacancy occurred in 1994, so activist groups on both sides of the political divide have had years to prepare for the coming confirmation involving Judge Roberts.

Liberal groups like the Alliance for Justice are urging Democrats on the Senate Judiciary Committee to press Judge Roberts about his views on issues like abortion and civil rights.

"And we think it is appropriate to ask whether a nominee is committed to uphold the individual rights and liberties that have come to define America and are embedded in our Constitution and we think that the Senate should ask those questions and if they do not get an answer to those type of questions should be willing to reject the nominee," said Adam Shah of the Alliance for Justice.

At least one Republican senator shares that view.

Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania says he will press Judge Roberts for his views on specific cases involving the authority of Congress to pass laws concerning civil rights and environmental protections.

But most Senate Republicans, backed by conservative activist groups, oppose any attempt to question Judge Roberts on specific legal issues or cases.

Roger Marzulla of the Republican National Lawyers Association was a recent guest on VOA's "Encounter" program.

"To the extent that we say to any judge, I want you, in advance, to tell me how you are going to vote on, you name the issue, abortion, death penalty, civil rights, environment, whatever, you have undermined the very nature of the judicial system, which is that a judge should approach each case with an open mind," he said.

George Washington University legal expert Mary Cheh believes the nationally televised Roberts hearings will provide an opportunity for Americans to make their own assessment about his suitability for the Supreme Court.

"And you know what? I think the American public ought to view this almost as a job interview by Mr. Roberts and satisfy themselves that this is someone, given the powers that we just spoke about the Supreme Court that really is, as Senator [Charles] Schumer [New York Democrat] said, is worthy of such a high position," said Ms. Cheh.

If the hearings go smoothly, Senate Republicans plan a confirmation vote by the end of September, which would allow Judge Roberts to assume his place on the nine-member Supreme Court in time for the beginning of its next session on October 3.