Dubya Takes the Safe Road With Roberts

Beset by crises at home and abroad, President Bush chose the path of least resistance in deciding to promote Supreme Court nominee John Roberts to the vacancy created by the unexpected death of Chief Justice William Rehnquist.

Bush first nominated Roberts in July to replace retiring Justice Sandra Day O’Connor, the justice in the middle of a divided court over abortion, affirmative action, church-state separation and states rights, and Roberts seemed headed toward Senate approval despite opposition from some liberal interest groups.

Bush’s announcement Monday that the conservative Roberts is his pick to replace the conservative Rehnquist _ surprising only for its speed _ postpones a seismic shift for now in the court’s philosophical makeup and avoids prolonged vetting of an entirely new candidate for the chief justice’s job.

“This changes the dynamics of the confirmation process without changing the balance of the court,” said Duke University law professor Erwin Chemerinsky, a Roberts critic. “Had the president promoted (Justices Antonin) Scalia or (Clarence) Thomas to the chief justice’s job, Bush was guaranteed a confirmation fight at a time when the administration’s response to Hurricane Katrina made Bush more vulnerable than he was even in July, when his approval ratings were in the 40s over Iraq and the economy.”

Notre Dame law professor Richard Garnett is a Roberts friend and, like Roberts, a former Rehnquist law clerk. Garnett calls Roberts “a rock star” whose qualifications as an honors graduate of Harvard and its law school, a leading Supreme Court lawyer and federal appeals court judge are unmatched.

“Even if the president wasn’t up to it in alligators and his approval rating was 90 percent, John Roberts simply is the best guy for the chief justice’s job,” Garnett said. “I think the thought of having John Roberts join him on the court kept the chief going despite his cancer. I think he’s probably smiling about it now.”

Bush expressed hope that Roberts’ selection as chief justice will still allow for Senate confirmation before the new court term starts Oct. 3.

For his part, Roberts used his selection to praise the late chief justice, saying, “I am very much aware that if I am confirmed, I would succeed a man I deeply respect and admire, a man who has been very kind to me for 25 years.”

Before joining the U.S. Circuit Court of Appeals in 2003, Roberts, 50, also was a lawyer in the Reagan and first Bush administrations and argued 39 cases in the Supreme Court, as chief deputy solicitor general from 1989 to 1993 and in private practice.

The current Bush administration allowed release of almost 80,000 pages of Roberts’ memoranda and working papers from his years in the Reagan Justice Department and White House. But it claimed attorney-client privilege in refusing to release papers from his solicitor general’s office days despite Senate Democrats’ requests.

Sen. Patrick Leahy of Vermont, ranking Democrat on the Senate Judiciary Committee, renewed his call for release of Roberts’ papers Monday from 16 solicitor general’s appeals. With Roberts’ nomination to head the high court and nation’s judiciary, Leahy said, “The Senate’s advice and consent responsibility takes on an added dimension.”

The Judiciary Committee was originally scheduled to start Roberts’ confirmation hearings Tuesday. But the opening of the hearings was postponed until after Wednesday’s funeral for Rehnquist, who continued working at the court following his diagnosis of thyroid cancer in October until his health declined precipitously late last week. He died Saturday at home at age 80 after 33 years on the court, 19 as chief justice.

Most conservative groups vowed to work for Roberts’ confirmation to the top job. Progress for America, which has promised to spend as much as $18 million to support the president’s choice, issued a statement Monday, saying, “Now is not the time to abandon support for political reasons.”

But not everyone was pleased with Roberts’ pending promotion.

Liberal groups, which made little headway opposing Roberts’ earlier nomination, renewed their opposition to Roberts or said, now more than ever, his record requires a thorough airing.

Some Bush allies complained, too: Rev. Pat Mahoney of the Christian Defense Coalition and other social conservatives picketed at the Supreme Court Monday to protest Bush’s bypassing of “the two Supreme Court justices he often stated he admired most, Justices Thomas and Scalia.

“It is very troubling that he would pass them over for Judge Roberts, a judge that we know very little about regarding the future direction of the court,” Mahoney said.

Social conservatives also objected July 19 when Bush allies floated trial balloons that O’Connor’s replacement would be Edith “Joy” Clement of New Orleans, a Birmingham, Ala., native who sits on the 5th U.S. Circuit Court of Appeals. Instead, the White House let it be known late that day that Roberts would be Bush’s choice.

Possible O’Connor replacements now include prospective candidates Bush scrutinized for that vacancy including Clement. Others include Bush friend and aide Attorney General Alberto Gonzales; former Deputy Attorney General Larry Thompson; and a half dozen federal appellate judges including Emilio Garza, Edith Jones and Priscilla Owen, also of the 5th Circuit; Michael Luttig and Harvie Wilkinson of the 4th Circuit in Richmond; Samuel Alito of the 3rd Circuit in Philadelphia, and Michael McConnell of the 10th Circuit in Denver.

O’Connor, 75, the first woman named to the Supreme Court in 1981 and one of two women justices now, announced her surprise retirement July 1 because of her husband John’s health. But she said she would stay until her replacement is confirmed.

(Contact Mary Deibel at DeibelM(at)shns.com)