Interesting View on Potential Court Nominees

Tom Goldstein of the SCOTUSBlog has an essay up on potential nominees and makes some interesting points. First, I think he places the abortion question into context:

It is essential to Republicans that the President nominate someone who is very solidly conservative. To pick someone more moderate or liberal would move the Court to the left.

In this context, "conservative" (like "non-activist" or "strict constructionist") is often mistakenly perceived a code word for - or reduced by the press the simplistic formulation of - "willing to overrule Roe v. Wade." Abortion is certainly the most prominent Court-related question in the public's mind, and it no doubt is the most important question for the vocal religious conservative base that was so important to the President's re-election. (That constituency is also very concerned with gay rights, but that issue is unlikely to be on the table in a significant way: Lawrence v. Texas established a moderate anti-discrimination principle from which the Court is very unlikely to retreat and there is nothing approaching a Court majority to recognize a federal constitutional right to gay marriage.)...

The principal role of the abortion question will instead be its capacity to mobilize opposition to a nominee. As important as abortion is to social/religious conservatives, it is equally galvanizing to liberal groups and women's-rights organizations, and it is the single issue that is best capable of unifying Democratic Senators to block a nominee. That means, I think, that Michael McConnell, Emilio Garza, and Edith Jones - all of whom have candidly stated their opposition to Roe - are quite unlikely candidates. Conversely, because social conservative groups have laid down an absolute marker against him based on concerns that he might vote to reaffirm Roe, I don't think that the President will nominate Alberto Gonzales. (Gonzales has the further problem that Democrats would demand to see memos from the White House counsel's office relating to the recent detention controversies.)

This leads us back to the notion that the President may look for a "stealth" candidate, one who at least has no clear track record of support for or opposition to Roe v. Wade. But then he suggests John Roberts, a judge on the DC circuit, who does have a pretty clear record against abortion, but he says that it could be gotten around on a technicality:

He also notably can be said to have argued for the overruling of Roe v. Wade, a fact that would cause religious conservatives to embrace him: he signed the United States's brief in Rust v. Sullivan, which included a pointed (if gratuitous) statement that the Administration believed that "Roe was wrongly decided and should be overruled." But he took that position as a government lawyer while in the Solicitor General's office, where he was advocating the position of the Administration, a fact that makes it substantially more difficult to block him on that ground. I am not aware of any public statements by Judge Roberts regarding his personal view on whether Roe should be overruled.

Interesting possibility. I know absolutely nothing about Roberts, so I can't really say much about him as a nominee. But it adds another name to the list. And Juan Non-Volokh favors the nomination.