After Rehnquist -- Roberts?

By Mary Lynn F. Jones, AlterNet. Posted September 4, 2005.

As Congress returns to Washington on Tuesday to deal further with the horrific aftermath of Hurricane Katrina, senators now face another challenge: whether to confirm Judge John G. Roberts Jr. to succeed Chief Justice William Rehnquist, who died Saturday at age 80.

Bush moved swiftly in making the announcement Monday, saying that Roberts, who once clerked for Rehnquist, shared the last justice's "deep reverence for the Constitution, his profound respect for the Supreme Court and his complete devotion to the cause of justice."

Bush's remarks came a day after he promised to "choose in a timely manner a highly qualified nominee to succeed" him. Bush must now re-nominate Roberts for the chief justice position, instead of the associate justice position for which he had been nominated to succeed retiring Justice Sandra Day O'Connor. Roberts' hearings for the associate seat, scheduled to begin tomorrow, will likely be delayed. Rehnquist's body will lie in repose at the Supreme Court before his burial Wednesday.

Roberts said he was "honored and humbled by the confidence that the president had shown in me." Most presidents have looked outside of the court's current members for chief justice candidates, although President Reagan elevated Rehnquist from associate justice to chief justice in 1986.

Democrats had urged the administration and lawmakers not to rush the process in filling the court's first double-vacancy since 1971. "We should proceed carefully and appropriately in filling these important vacancies," said Sen. Edward Kennedy, D-Mass., a member of the Senate Judiciary Committee, before Bush made his announcement Monday.

On ABC's "This Week," Sen. Charles Schumer, D-N.Y., had called on the Senate to delay the hearings so the nation can mourn Rehnquist, and suggested Bush name O'Connor as chief justice for a year to allow for stability on the court. When she announced her retirement in July, O'Connor offered to remain on the court until her successor is confirmed, which means she will likely have to stay longer now given the change in Roberts' status.

Republicans, however, have argued that Roberts' confirmation hearings should proceed as planned. "We can get him on the court, if that is the will of the Senate, before [the court] reconvenes" on Oct. 3, Senate Judiciary Committee member John Cornyn, R-Texas, told "Fox News Sunday." In a statement Saturday, Senate Majority Leader Bill Frist, R-Tenn., said he would work with Senate Judiciary Committee Chairman Arlen Specter, R-Pa., "on how to move forward pending Judiciary Committee business."

While Republicans were confident of confirming Roberts before the court's new term begins, it is near impossible that both Roberts and whomever Bush nominates for the associate justice position will be in place by then. Last week, Republicans and Democrats on the committee unveiled their witness lists for Roberts' hearings, with more than two dozen witnesses expected to testify. Nominating a new justice, researching his or her legal writings, asking the candidate to answer questions from the committee and organizing hearings alone could take well over a month before the hearings actually begin. Bush's decision to renominate Roberts for Rehnquist's job means there will be two, not three, confirmation hearings.

But clearly trying to seat the new justices, who will make up about a quarter of the court's membership, is a high priority for the administration. Until Roberts is seated, John Paul Stevens, as the most senior justice, will lead the court, which could deadlock cases. The court has often split five to four in recent years, such as in 2000 in Bush v. Gore, which ended the contentious post-election legal process.

Although Rehnquist's health was in decline, his death from thyroid cancer was still somewhat of a surprise, brought on by a "precipitous decline" in recent days, according to a Supreme Court spokeswoman. As the administration considers his successor, it is also trying to defend itself from public and congressional criticism about its slow response to the hurricane's aftermath in Louisiana, Mississippi and Alabama; Bush is scheduled to tour parts of the Gulf Coast on Monday, and several members of Congress have called for an investigation into the government's post-hurricane actions. At the same time, Congress is faced with passing appropriations bills before the new fiscal year begins Oct. 1.

Rehnquist -- who joined the court in 1972 and was the nation's 16th chief justice -- was considered the "lone ranger" in his early years on the court, as his conservative positions led him to dissent from the majority on cases such as Roe v. Wade in 1973. Not as conservative as Justices Clarence Thomas or Antonin Scalia, he voted to allow state employees to sue their bosses for violating the Family and Medical Leave Act, reaffirmed a suspect's so-called Miranda rights and supported the idea of an independent judiciary. But he also voted to uphold the death penalty, and supported the court's decision allowing a school district to issue vouchers for students to attend private or parochial schools.

Elliot Mincberg, vice president and legal director of People for the American Way, a progressive interest group opposing Roberts, said Sunday that he hoped Bush would choose a nominee in the mold of the more centrist O'Connor to succeed Rehnquist. He noted there has been a "tremendous increase of concern" about Roberts in the last several weeks; Democrats remain frustrated that the White House has withheld some of Roberts' writings. Among the groups opposing Roberts' nomination are the National Organization for Women, Naral Pro-Choice and the National Association for the Advancement of Colored People.

While interest groups on both sides of the political aisle initially projected spending millions of dollars debating Roberts' nomination, the fight over Roberts fizzled after several Democrats indicated early on that they would most likely support him if he failed to trigger the "extraordinary circumstances" clause of the so-called Gang of Fourteen bipartisan senators. But given that Roberts is now being considered for the chief justice position, Democrats are likely to press Roberts further on his views and press the administration for more information.

With the nation's capital focused on the hurricane's victims, the future of New Orleans and Rehnquist's funeral -- as well as the knowledge that the court's term begins in less than a month -- and Republicans eager to get Roberts on the court, it's quite possible that the Senate will confirm Roberts quickly and save the bigger fight for Bush's second nominee. Whatever happens, it's sure to be a long fall.

Mary Lynn F. Jones is a Washington, D.C.-based writer.

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