Monday, September 05, 2005

[Supreme Court]

Roberts for Chief?
This morning, the President upped the ante on John Roberts: now Bush wants him as Chief Justice. Until this morning, most Democrats had kept their powder dry, taking a wait-and-see approach to his nomination (here's Harry Reid, for example). More liberal groups, like NARAL, opposed Roberts, but NARAL was likely to oppose any nomination Bush made. Based on Roberts' impressive resume, his scant record as a judge, and the candidates Bush might have nominated (Janice Rogers Brown, anyone?), it was looking pretty evident that John Roberts was due to sail through confirmation hearings.

BandrBut what about Roberts as Chief Justice--is the calculation the same? I'd argue the answer is no, for a few reasons. The judicial reasons relate to those questions that were due to be raised anyway: is a man who has only served as judge for two years qualified to sit on the Supreme Court? What does this lack of record conceal? Those questions are obviously heightened for an incoming chief. What's more, the stakes are very high. Roberts is only fifty, and could remain Chief Justice for thirty years or more. Once in, there's no getting him out.

There are some political concerns, here, too. Bush apparently took the temperature of the Senate and decided Roberts was a shoo-in. What does that mean about Bush's subsequent choice for O'Connor's replacement? Because the difficulty of confirming a Chief Justice is obviously greater than for an associate, does this mean Bush will nominate someone to the far right, someone further right than he could have nominated for chief? (I suspect it does, and the right seems to agree--they're already rallying forces against Alberto Gonzales.) Roberts' nomination now must be taken in light of another nomination as well. Would Senators vote differently if they knew that Bush had a Scalia clone planned for his next nomination? If so, shouldn't they assume the worst?

In any case, I hope the confirmation hearings take on a new rigor. Senators shouldn't give anyone a 30-year pass. The new Chief Justice will help shape law in the United States for a generation. Roberts might have been a passable associate justice, but Senators need to really dig around to discover whether he'll pass muster as chief.

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