Roberts for Chief Justice

[billroper]

Bush has nominated John Roberts to succeed William Rehnquist as Chief Justice of the Supreme Court. I had commented to daisy_knotwise yesterday that shifting Roberts' nomination to Rehnquist's seat would make sense, since O'Connor has promised to stay on the bench until a successor is confirmed and it would be the best thing for the Court and the country.

I hadn't expected him to actually nominate Roberts for Chief Justice, but -- thinking about it -- he's probably the best choice that Bush had available to him, given that the sitting options on the court were Scalia and Thomas. There's some reasonable chance that Roberts is a consensus builder, which is more than can be said for the other two.

Comments

[almeda.livejournal.com]

Wait, Rehnquist is out? When did this happen?

Stupid hurricane, using up all my friendslist's newsblogging capability so I don't hear about things like this ... Not really. But still.

It says something that I get 90% of my news through my friendslist, though.

[singlemaltsilk.livejournal.com]

Rehnquist passed away, Saturday I think.

[shsilver.livejournal.com]

I'm trying to hold off on pre-judging Roberts one way or the other (but will note that people who instantly pre-judge against him are called knee-jerk and those who pre-judge in his favor don't seem to have that criticism leveled at him). Rather than saying "There's some reasonable chance that Roberts is a consensus builder" as you do, I would probably say that Roberts has the opportunity to be a consensus builder, since his record doesn't really indicate one way or the other.

I am concerned about several aspects of his record, however. Yes, his job was to argue the positions he was hired to argue, but frequently you can tell something about someone's opinion by the cases and clients someone takes. I do find it disingenuous that many of Roberts supporters say "Just because his wife is anti-abortion and Roberts has argued many anti-abortion cases doesn't mean he's opposed to abortion" when talking to the left and then say "But look at the work his wife has done" when speaking to the religious right.

Given that he (apparently) disagrees with the "so-called right of privacy," (which is based on the Fourth Amendment) and has given the weasel comment that he won't vote overturn settled cases, I have to presume he doesn't see Roe v. Wade as settled. Of even more concern is that if he doesn't believe in the right to privacy, does that mean he doesn't view Griswold v. Connecticut as settled? What about Lawrence and Garner v. Texas?

Roberts may be better than Scalia and Thomas, but he may also be a clone of theirs once he gets onto the court, well, a clone of Scalia's. Thomas may be the least competent Supreme Court Justice ever appointed and confirmed to the bench.

[tigertoy.livejournal.com]

Frankly, I think nominating Roberts for Rehnquist's chair makes Bush look unprepared. Did he intend to put Roberts in as Chief all along, but somehow think that Rehnquist was going to live another year at least? If he didn't have any plans for who he would nominate for Chief before O'Connor's bombshell, then he really is the dummy that some people on the left think he is. Some people were expecting him to nominate Alberto Gonzales. They might argue that Gonzales was in fact his first choice but he made a political calculation that right now wasn't the time.

I haven't looked very deeply into Roberts' record, but what I've heard makes him sound less dangerous to liberal causes than I expected from a Bush nominee. That doesn't mean that I like him or I'm confident he will do what I see as a good job, but I'm not certain that he will be a disaster from the get-go. Frankly, I'm surprised he didn't tap someone as reliably horrible as Thomas. Bottom line, I expect him to be confirmed, and I question the people who seriously oppose him -- if they did succeed in defeating him, do they actually think Bush would nominate someone they like better, given that their hope of defeating him, slim as it is, is that he's not conservative *enough* for some people on the right to support him fully?

[bedlamhouse]

Actually, moving Roberts into the successor-to-Rehnquist position makes Bush look very responsible. Any other appointment would pretty much have guaranteed that the court would be at less than full strength and probably without a Chief Justice when the court session begins on October 3. There's no way a new nominee could have been vetted and examined by both sides of the aisle in time for confirmation hearings by then. If a separate set of CJ hearings were needed (and mind, I can't remember if the CJ position itself requires Senate approval if the nominee is already an Associate Justice, but I'm fairly sure it does) then there might have been a full court but no real leadership of it, which is almost as bad as a less-than-full court.

I expected Bush to stick to a conservative agenda and appoint a new justice immediately, but by doing this he has actually made it more likely that cases heard early in this term (at least) will be much the same as last term - Roberts is Rehnquist and O'Connor remains the swing vote. I'm rather pleasantly surprised to see him take the reality of the court and the needs of the country into consideration.

[tigertoy.livejournal.com]

Looking at it again, I realize that there's one piece of the puzzle that I had upside down on the table: O'Connor hasn't actually left yet, so switching Roberts to Rehnquist's chair apparently means that O'Connor will stay on until her second successor is confirmed. I think my thinking was muddled with the belief that O'Connor was already gone.

There is some question as to whether the Court is better served with having O'Connor on the bench for a couple of months and leaving in the middle of the session, or having a vacant chair at the start of the session, given that that means she may hear arguments on cases and then not actually decide them. I don't understand the inner workings of the Court well enough to really know the answer to that question, and frankly I suspect that very few people who haven't actually worked on the Court do either.

By the way, if a sitting Associate Justice is nominted for Chief Justice, there are confirmation hearings. The outcome is usually in little doubt, but if Bush had nominated Scalia or Thomas for Chief, Washington would have been in chaos for weeks at best. God, what a nightmare. The left, outraged, filibusters. The right, outraged, resurrescts the "nuclear option", and after weeks of arm twisting gets the Republicans in the coalition that stopped it the last time to let it go through. The Democrats, galvanized by their anger, stop all business in the Senate until the election, and depending on how the public reads the whole mess, the new Congress is either a solid Democratic majority or a veto- and filibuster-proof Republican majority.

[smallship1.livejournal.com]

I saw a comment somewhere to the effect that the poster thought Scalia was a shoo-in, and that this was a Bad Thing. This, then, sounds like a Less Bad Thing. Is that a fair assessment (from the point of view of someone who would think Scalia was Bad)?

I'm doing my best to keep up...:)

[tigertoy.livejournal.com]

I think I qualify as someone who thinks Scalia is Bad.

Roberts is really an unknown quantity; many commentators have stressed that it's very hard to tell how someone will rule on the Supreme Court based on what they've said before getting there. (This is compounded because a nominee that ever actually came out and said how he would vote on the real hot button issues of the day would be rejected by the people who disagree with his position whatever it was. The key to getting confirmed is to have at least some people on both sides willing to believe that the nominee is on their side.) But there's a reasonable range of expectation for Roberts, with the worst end of the range being just like Scalia. My best guess is that Roberts would not actually vote to overturn Roe v. Wade (the decision that legalized abortion, the 900 lb. gorilla at the hot button issues convention), not because he agrees with it but because he strongly supports the principle of stare decisis, which says that once the Court has made a decision it should stick with it; but I am far from certain on this.

The real issue with Scalia would not be Scalia as Chief Justice, it would be the unnamed new Associate Justice who would take his chair. I'm not sure how much Bush wanted to nominate Scalia for Chief -- there are rumors that Scalia really wanted it and the extreme right wing certainly loves Scalia -- but if he did want Scalia he must have decided that it wasn't worth going through three rounds of the confirmation circus (once for Scalia as Chief, once for Roberts as Associate, and once for the new Associate taking Scalia's old chair).

So, your short answer is, yes, Roberts is statistically less bad than Scalia, though only history will be able to say how he really plays out.

[kevinnickerson.livejournal.com]

I don't think I'm going to like Roberts as a justice, but given my fundamental disagreements with the right, I also think he's as good as I'm going to get. So, I'm in favor, or as in favor as is possible.

[hrrunka]

...as a random foreigner, it surprised me that anyone not already on the Supreme Court could be considered a candidate for Chief Justice.

[bedlamhouse]

Historically, a new Chief Justice has more often been an outsider than a person "promoted from within". Rehnquist was the first in a while, IIRC.

[tigertoy.livejournal.com]

As a random American, it seems odd to me that so few Chiefs are promoted from Associate, but America has a strange distaste for promotion from within, or perhaps I should say a strange faith that general qualitications are more important than actually being familiar with the organization one is supposed to lead. Few of our Presidents, at least recently, have even served in the Senate, to say nothing of the Cabinet. When a corporation brings in a new CEO or a university a new president, they're almost always an outsider with a good resume of "management experience" rather than an insider who already knows the people, facilities, procedures, and culture of the institution.

I think it's actually a historically new thing for pretty much all Supreme Court nominees to be sitting Federal appelate judges; in the 19th Century, weren't most of them basically private citizens?

[billroper]

I believe that the current theory (subject to change at any time) is that serving in a legislature (even the Federal one) is not as good at preparing you to serve as President as a stint as a governor of a state, which is also an executive function. Vice President of the U.S. is also usually viewed as a good thing in terms of experience, unless you're Garner, who likened it to a "warm pitcher of spit", as I recall. :)

The last Senator to be elected President was Kennedy. Everyone since then was either a governor or Vice President. Before that, we had Eisenhower, who had a different set of managerial experience.

[tigertoy.livejournal.com]

I agree that the current popular myth is that serving as governor of a state is better preparation than serving in the Senate. I don't think it makes sense -- I think Carter and Clinton (first term) were both hampered by a lack of understanding of how to get things done in Washington -- but I think that's the common perception.