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September 05, 2005

Oh, Dear. Politics Again.

By Stephen Presser

The Presidentís decision to withdraw John Robertsís nomination as associate Justice and nominate him to the position of Chief Justice of the United States is a brilliant political move; not only does Richard get his wish about keeping a full complement of Supreme Court justices (assuming Roberts is confirmed), because OíConnor stays on until a replacement for her is seated, but the President makes Robertsís confirmation even more certain because it is difficult for the left to make the Sunstein/Schumer argument about a need for a ďbalancedĒ Court when one conservative (Roberts) simply replaces another (Rehnquist). The real fight now will come when an OíConnor successor is named, assuming that the President keeps his pledge to appoint Justices in the mold of Scalia and Thomas.

Still, for those of us who like to worry, there are things to worry about here. First of all, whatever the brilliant politics of this, it does suggest that political considerations, not judicial ones, were foremost in the mind of the President. The Chief Justice has four primary roles, as I see it. The first is the assigning of opinions when he (letís use the male pronoun; the President sadly blew his chance to appoint Edith Jones or Janice Rogers Brown as the first female Chief Justice) is in the majority, the second is to serve as at least the titular head administrative officer of the United States Courts, the third is to serve as a symbol of the Supreme Court, and the fourth is to preside over Presidential impeachment trials. Letís pray that the fourth job (which has only been performed twice before, once by Rehnquist) will not need to be done in the near future. The others will, however, and to appoint a lawyer, however brilliant, with no prior service on the Court, with no experience as a court administrator, and at a relatively young age, suggests that the particular attributes a Chief ought to have were not foremost in Mr. Bushís mind.

Scalia or Thomas would have been better choices (especially since Mr. Bush claims they are his favorites), but perhaps the two declined the job. In their shoes Iím not at all sure Iíd want to suffer confirmation by this particular crew in the Senate. They probably were content to stay where they were. As a political matter, had Bush nominated either of those two, he would have been faced by three confirmation hearings, not just two, and he was able to take the easy way out. For Richard and me, though, weíre right back where we started, arguing about how we defeat the leftís argument that OíConnor must be replaced by someone who shares her ideology (or her bizarre and inconsistent Constitutional result-orientation). Assuming the Democrats in the Senate have thought this through, they should mount only token opposition to Roberts, if any at all, and then expend all their considerable resources in whipping up their base, their activist organizations, and their friends in the mainstream media to demand ďbalanceĒ (meaning a pro-abortion nominee) to replace OíConnor. One wonders what the Senate is up to in postponing the Roberts hearings; since his qualifications arenít going to change now that heís been nominated for Chief, and all the cards are on the table. The ridiculous reasons offered by Schumer and others for postponing the hearings make no sense, and Iím sure Rehnquist would have wanted a swift confirmation of his successor. I hope that this doesnít portend more silliness in connection with Roberts, or an effort to get more time to wrangle concessions regarding the nomination of OíConnorís successor out of the President. Letís hope Mr. Bush will not be tempted now once again to take the politically easy route and appease them.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.