Sidebars on Rehnquist and Roberts

The death of Chief Justice William H. Rehnquist, and President Bush’s choice of John G. Roberts Jr. to replace him, dominated the musings of our LiveCurrent combatants last week. Here’s an edited excerpt. Pick up the action at latimes.com/livecurrent Monday, when our bloggers trade shots in real time over Roberts’ confirmation hearings.

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In remembering Rehnquist, Chicago law professor Richard Epstein said:

Dwight Eisenhower was fond of quoting the definition of an intellectual as someone who took more words to say less than he knew. By that definition, Rehnquist was, most decidedly, not an intellectual. He had little patience for the obscure and finely spun theories that preoccupy academic discussions about constitutional law. He was innately suspicious of the Ivy League mode of analysis that so often drives modern constitutional scholarship. Even though he went to Stanford Law School, he remained true to his Wisconsin roots.... He probably did not have a grand judicial philosophy, but he possessed a strong set of instincts that, for the most part, led him in the right direction.

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Douglas Kmiec of Pepperdine University said the core element of Rehnquist’s legacy was:

We are a democratic republic that is healthier when “we the people” can experiment with different answers to hard questions. In this, Rehnquist wasn’t pro-life or pro-abortion; he wasn’t for or against gays. He was simply for letting you and me in our several states make up our own minds -- without the court getting in the way.

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Duke’s Erwin Chemerinsky worried that:

President Bush’s nomination of Roberts to be the chief justice profoundly changes the dynamics of Roberts’ confirmation. Roberts replacing Rehnquist does not shift the court’s ideological balance.... The crucial question is who will replace Sandra Day O’Connor, who was frequently the swing vote in key 5-4 decisions protecting civil liberties and civil rights. Democrats thus need to insist that they will not vote on Roberts’ confirmation until after O’Connor’s successor is named because both picks need to be assessed together to determine their potential effects on the court’s direction.

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According to lawyer Edward Lazarus:

Bush made a shrewd move in shifting Roberts from being the prospective replacement for O’Connor to being the prospective replacement for Rehnquist. If Roberts becomes chief justice, he will be ideally placed to use his considerable interpersonal skills to advance a very conservative legal agenda.

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Hastings law professor Vikram Amar said:

With Roberts nominated to replace Rehnquist, Democrats may be able to focus more sharply on how O’Connor’s replacement could upset the court’s current balance. The president might 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. But if Bush tries to fill O’Connor’s slot 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.

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Meanwhile, from the Comment gallery:

It should be obvious that the Bush administration will use [Rehnquist’s death] to push another right-wing ideologue onto the court. In case we all forgot what the election of 2004 was about!

--R. Dettbarn

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Rehnquist was a well-educated gentleman, to be sure, but I suggest that he will be remembered as a Republican lackey.

--Michael Laurence

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I doubt that changing Roberts’ nomination from associate to chief will change the Democrat strategies and hype one bit.

--J.R. Doty

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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’Connor? If it’s anyone to her right, the Dems must make this the mother of all confirmation battles.

--David Howard