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September 06, 2005
Roberts Picked to Replace Rehnquist: First Responses *UPDATED TUESDAY*
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Vikram Amar is professor of law at UC Hastings College of the Law. |
Whether the Chief Justice's passing will affect the direction of the Court depends, of course, on whom the President is able to confirm to fill the second (now slotted as Justice O'Connor's) vacancy.
Erwin is certainly correct that replacing Chief Justice Rehnquist with a seeming conservative (like John Roberts) likely won't change too many outcomes; indeed, if people had to pick the sitting Justice whose voting pattern John Roberts' future performance is most likely to approximate, Rehnquist (Roberts' old mentor) would have been the most popular answer.
But now that Roberts is slated to replace the chief rather than O'Connor, Democrats may be able to focus more clearly on how O'Connor's replacement could upset the current balance on the Court. If the President had his wish, perhaps he would have preferred one year with both Rehnquist and Roberts on the Court. Then, a year from now, when he tried to replace Rehnquist with another conservative jurist, the President could (plausibly) argue that he would not be changing the then-existing dynamic.
By contrast, if he tries to fill O'Connor's slot in the coming months with a true conservative — having already filled the Chief's slot with one — he cannot easily deny that the O'Connor replacement will have significant doctrinal implications.
Couldn't the same have been said about the nomination of Roberts to replace O'Connor earlier this summer? Yes, but there are two differences now. First, although Roberts is likely to be more conservative than O'Connor, he is so likeable that his conservatism may not have been attackable by Democrats. There simply aren't that many guys out there like Roberts — whose personal charm, grace and likeability can deflect critisism about his ideology — for Bush to tap and easily confirm.
Second, before the Chief's death, there was always the possibility that the President would appoint a more moderate person to replace him later, to balance off the more conservative move reflected by the O'Connor/Roberts swap. If the President's pick to replace O'Connor this fall is as conservative as Roberts, though, that optimistic possiblity of future balance doesn't exist, insofar as Roberts already would have been installed.
That is why, I think, Erwin is right that Democrats would like to know the identity of the second half of the 1-2 punch before responding to the first, but I'm not sure they'll have that chance.
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Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court." |
President Bush has made a shrewd move in shifting John Roberts from being the prospective replacement for Sandra Day O'Connor to being the prospective replacement for his former boss Chief Justice Rehnquist.
For conservatives, the greatest concern about Roberts is the possibility that he may "evolve" to the left, like Justices Harry Blackmun and (to a lesser extent) Anthony Kennedy. For liberals, the greatest concern about Roberts is that he may become a William Brennan of the right — a justice who draws others into his orbit by dint of intellect and charisma. If Roberts becomes chief fustice he will be ideally placed to use his considerable interpersonal skills to advance a very conservative legal agenda.
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Erwin Chemerinsky is Alston & Bird professor of law and political science professor at Duke University. |
President Bush's selection of John Roberts to be the next Chief Justice profoundly changes the dynamics of the Roberts confirmation process. Roberts replacing Rehnquist does not shift the Court's ideological balance. From all that is known about Roberts, he is likely to vote in the same conservative manner as Rehnquist. But this again makes the crucial question who will replace Sandra Day O'Connor, who has so often been the swing vote in key 5-4 decisions protecting civil liberties and civil rights.
Democrats need to insist that they will not vote on Roberts confirmation until after O'Connor's successor is named. The Senate needs to evaluate both picks together in assessing their impact on the Court, now and for years to come. Also, Democrats need to make clear that since President Bush has already picked a hard core conservative in Roberts for one vacancy, the other selection needs to be a more moderate Republican in the mold of O'Connor.
Posted at September 6, 2005 09:32 AM
Comments
The emerging picture is Roberts getting easily confirmed as a Rehnquist clone. A wash for vote-counters. The issue becomes who will Bush REALLY pick to replace Sandra Day O'Conner? If it's anyone to Justice O'Conner's right, the Dems. must make this the motherr of all confirmation battles.
Posted by: David Howard at September 5, 2005 02:24 PM