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Roberts for chief?

Orin Kerr, in addition to offering some thoughts about Chief Justice Rehnquist's legacy ("Especially as Chief, Rehnquist didn't view legal opinions as opportunities to make grand jurisprudential statements. ...The idea that the Justices on the Supreme Court are engaged in a grand struggle between opposing theoretical commitments makes for good entertainment, and provides lots of fodder for law review articles. As Chief Justice, at least, I don't think Rehnquist saw the work of the Court that way"), suggests that President Bush may decide to make John Roberts his nominee for the now vacant chief justice position, rather than for O'Connor's seat. From the time of his selection, Roberts has been seen as a plausible contender at some point for advancement to the Chief's spot, given his combination of 1) a conservative-but-confirmable expected place on the ideological spectrum; 2) a high degree of familiarity with the institutional workings of the Court; 3) a close identification with Rehnquist himself; 4) perhaps most important, a consensus-building personality and record of achieving collegiality with judges of many different views. Although reslotting Roberts into the Rehnquist vacancy would presumably delay his eventual confirmation somewhat, it might result in a quicker confirmation of a new Chief than most other options. In addition, since Justice O'Connor's resignation is contingent on the confirmation of a successor, her seat might not have to fall vacant when the Court reconvenes next month.

On a related topic, the Washington Post reports that Roberts is in good shape with many Democratic Senators representing conservative or moderate states. And the San Francisco Chronicle, in an article speculating on whether Roberts like several earlier GOP appointees will turn left in office, includes a surprisingly favorable quote about him from Alan Morrison, the veteran Public Citizen litigator now at Stanford whose views stand pretty much 100% in opposition to many of those expressed on this site. "John Roberts is a very careful and good lawyer, and I think the facts (of each case) will matter to him," Morrison said. Hmmm...

P.S. 8:40 a.m.: No, I didn't have any inside information about the selection. But the logic was there.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.