Supreme Court Picture Gets Complex

Times Staff Writers

The death of Chief Justice William H. Rehnquist has complicated White House plans for a smooth and quick confirmation for Supreme Court nominee John G. Roberts Jr.

Several members of the Senate Judiciary Committee said Sunday they were considering a delay in the Roberts hearings, which are scheduled to start Tuesday, so as not to interfere with the funeral plans for Rehnquist, the nation’s 16th chief justice.

Rehnquist, who died Saturday at his home in Arlington, Va., will lie in repose in the Great Hall of the Supreme Court on Tuesday and Wednesday. After funeral services Wednesday, he will be buried at Arlington National Cemetery.

President Bush has the option of naming Roberts as his choice for chief justice, but that also could delay the hearings.


Either way, the president must make a second choice for the high court, and many legal experts predict that rather than choose another conservative white male, like Roberts, Bush might opt for a woman or a minority. Much speculation focused on Bush’s attorney general, Alberto R. Gonzales.

Roberts, a former clerk to Rehnquist, appeared headed for an easy confirmation to fill the vacancy created by retiring Justice Sandra Day O’Connor.

Judiciary Committee Chairman Arlen Specter (R-Pa.) was consulting Sunday with senators and the White House about whether to put off the hearings for a few days or perhaps a week.

“The prospect of moving the hearings back is under consideration,” said William Reynolds, a spokesman for Specter. “There have been consultations with the Rehnquist family. We want to make sure their wishes are honored.”


But other Republicans said the Senate panel should move ahead on the Roberts nomination without delay.

“My preference is to proceed,” Sen. John Cornyn (R-Texas) said. “We are locked and loaded and ready to go on Roberts.”

He said the vacant seat on the Supreme Court left by O’Connor’s retirement should be filled by the first Monday in October, when the court opens its term.

Roberts’ chance of succeeding Rehnquist as chief justice is a “realistic possibility,” said Jay Sekulow, counsel to the American Center for Law and Justice, a conservative interest group.


“Anything is possible now, and John is very well qualified,” added Sekulow, who is helping the administration promote Roberts’ nomination.

Though Roberts, 50, has spent two years as a judge on the U.S. court of appeals, he has long experience as a lawyer before the high court.

By contrast, the 49-year-old Gonzales has virtually no experience working as a lawyer or judge in the federal court system. During the 1990s, he was a counsel to Bush when he was Texas governor and served briefly on the Texas Supreme Court. He then served as Bush’s White House counsel before being named attorney general this year.

Rehnquist, who was 80, had a deep knowledge of constitutional law and was a master at leading the court’s private conferences, according to his colleagues. The chief justice’s duties include giving a summary of the legal issues in each of several dozen cases to be discussed, and then offer his view on how they should be resolved. It would be a daunting task for a newcomer who had not worked on federal legal issues before.


It would be easy for the president to switch gears on the Roberts nomination. He could withdraw his nomination to be an associate justice and resubmit his nomination to be chief justice, lawyers and judiciary committee staffers said Sunday.

“The president can do that without almost any uncertainty because he knows how the Roberts nomination [for associate justice] has been received,” said Brad Berenson, a Washington lawyer who worked for the Bush White House. “Barring something unforeseen, he would be easily confirmed for chief justice.”

Berenson added: “This is the only scenario in which the court could begin the term with a full complement of justices, since Justice O’Connor pledged to stay on until her successor is confirmed.”

Bush on Sunday praised Rehnquist as “a man of character and dedication. He honored America with a lifetime of service, and America will honor his memory.”


The president said he would “choose in a timely manner a highly qualified nominee” to succeed the chief justice.

Dan Bartlett, counselor to the president, said Bush could move quickly because he interviewed several judges for a possible Supreme Court nomination when O’Connor announced her retirement plans July 1.

“We are not starting from scratch,” Bartlett said. “It is more going into an execution mode.... The president is in a decision-making mode.”

The calamity caused by Hurricane Katrina would not affect the timing of Bush’s decision, Bartlett said.


Bush could choose a current member of the court to be chief justice. The likely candidates would be Justices Antonin Scalia or Clarence Thomas, but either of them would set off a major battle in the Senate.

The president might also choose federal appellate Judges J. Michael Luttig or J. Harvie Wilkinson III, both from Virginia and both also favorites among conservatives. Democrats have said they would strongly oppose either.

Three prominent law professors, two conservatives and one liberal, said they doubted that Bush would choose another white male for the court.

“Politics being politics, the chances of another white male being appointed to the court seem small,” said Pepperdine Law Professor Douglas W. Kmiec, a veteran of the Reagan administration. “I think if the president had a free hand, Alberto Gonzales would be his nominee. The president has complete confidence in him in terms of intelligence and loyalty, and he is very anxious of having the distinction of naming the first Latino to the court.”


UC Berkeley law professor John Yoo, who served in the Justice Department during Bush’s first term, also pointed to Gonzales.

“The White House has made no secret of its desire to appoint the first Latino to the Supreme Court,” Yoo said. “The political symbolism is only enhanced by making the first Hispanic chief justice. Think of all the time we have referred to the Rehnquist Court. Then it would be the Gonzales Court, and it will always be remembered that it was George Bush who made it the Gonzales Court.”

Duke law professor Erwin Chemerinsky agrees that Gonzales or a female judge stands a good chance of being chosen.

“I think there will be real expectation that Bush will nominate someone other than a white male,” he said. “To the extent that Bush looks at this as his legacy pick, he could name the first woman chief justice or the first Latino chief justice.... A lot of this points to Gonzales; he is a legacy appointment.”


Another possibility is Judge Edith Brown Clement, who had been seen as a strong contender to fill the O’Connor vacancy. Last week, she had to flee her New Orleans home because of Hurricane Katrina.

A Bush appointee to the U.S. appeals court in New Orleans, Clement would be “hard to challenge” if nominated because she has a short paper trail, Chemerinsky said.

And now, he added, she has the possible added cachet of coming from storm-stricken New Orleans.