Roberts tapped for higher court calling

By naming Supreme Court nominee John Roberts to succeed William Rehnquist as chief justice, President Bush is seeking to avoid a Senate showdown that might have left the nation's highest court short-handed and embroiled in controversy with a new term fast approaching.

Instead, the move maintains the rough balance of power that existed on the high court prior to the chief justice's death on Saturday. It does so by requiring Justice Sandra Day O'Connor to continue to serve on the court until a new nominee to her seat is named and confirmed. What remains unclear, given Mr. Roberts's sparse judicial record, is how a Chief Justice Roberts might compare to Chief Justice Rehnquist. Will Roberts embrace the same conservative constitutional approach as Rehnquist?

"It's too early to tell. Some people believe that Roberts may be similar to Rehnquist in his jurisprudence, although that's not at all clear yet," says Carl Tobias, a constitutional law professor at the University of Richmond Law School.

Should Roberts win Senate confirmation, court watchers will learn the answer soon enough with a lineup of hot-button cases on the court's docket this fall - including assisted suicide on Oct. 5, abortion on Nov. 30, and gay rights on Dec. 6.

The real impact of Rehnquist's sudden passing is that instead of replacing Justice O'Connor, a centrist, with Roberts, who is presumed to be more conservative, the president is now replacing Rehnquist, a conservative, with a prospective chief justice who is to some extent an unknown quantity. The result is likely to be that O'Connor continues to wield her decisive tie-breaking vote in high-profile cases.

Legal analysts and court scholars say the president had few other options.

"To have a Supreme Court open just four weeks from now, the first Monday in October, with only seven people and no chief justice would be unprecedented, and I don't see that happening," says Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst.

Although O'Connor's continued presence on the high court is a welcome development to Democrats, most fear that it will be short-lived. The president is expected to move quickly to appoint an O'Connor replacement who could shift the court significantly to the right.

In the meantime, Democrats say that Roberts's elevation to chief makes his nomination even more controversial and substantially raises the stakes. In anticipation of his confirmation hearings, Democrats are ramping up to use Roberts's record on civil rights and affirmative action as a main point of attack.

"The chief justice is the most important judge in the country, with even more responsibility for the protection of the rights and freedoms of all Americans. Thus, John Roberts bears a heavier burden when he comes before the Senate," says Sen. Edward Kennedy (D) of Massachusetts.

Republicans are praising the White House choice of Roberts as chief justice, noting that he has the necessary leadership skills to guide the high court. Some suggest his service on the court will mirror that of Rehnquist's.

"Throughout his years on the nation's high court, Chief Justice Rehnquist stood as a beacon of judicial restraint and reverence for the Constitution and the institution of the Supreme Court. I believe Judge Roberts will follow the lead of his mentor, and guide our nation's highest court by those same principles and devotion to the rule of law for all," says Sen. John Cornyn (R) Texas.

Although the chief justice casts only one vote like the other justices, the chief has the power when in the majority to assign who will write the majority opinion. In a closely divided court, the assigning power can sometimes be used strategically to draw an otherwise dissenting justice into the majority by naming that justice to write the opinion. The chief justice also has the power to assign the decision to him or herself and thus limit or expand the scope of a decision in subtle but meaningful ways.

The chief justice's personality is also important, legal analysts say. "He does have many of the qualities that potentially can make for a great and influential chief justice," says Professor Tobias. "He has that great intellect, which no one has denied, and a personality in many respects similar to Rehnquist's - a very charming, affable, low-key, modest personality that was able to make the court a much friendlier and somewhat less contentious place."

Liberal advocacy groups say they will continue to oppose the Roberts nomination. Ralph Neas, president of People For the American Way, says the group's objections apply to an even greater degree to efforts to elevate Roberts to chief justice.

"The nomination of John Roberts has evolved considerably since July, when the White House was successful in portraying him as a lawyer above the fray.... Almost daily revelations coming out of the Reagan presidential library show someone at the epicenter of a comprehensive assault on fundamental rights that have been part of the law for decades," says Mr. Neas.

The road to confirmation

Supreme Court nominations over the past three decades have encountered a variety of receptions by the Senate.

William Rehnquist
Nominated by President Nixon (R), 1971.
Democrats controlled the Senate.
Senate confirmed 68-26.

John Paul Stevens
Nominated by President Ford (R), 1975.
Democrats controlled the Senate.
Senate confirmed 98-0.

Sandra Day O'Connor
Nominated by President Reagan (R), 1981.
Republicans controlled the Senate.
Senate confirmed 99-0.

Antonin Scalia
Nominated by President Reagan (R), 1986.
Republicans controlled the Senate.
Senate confirmed 98-0.

William Rehnquist
Nominated as chief justice by President Reagan (R), 1986.
Republicans controlled the Senate.
Senate confirmed 65-33.

Robert Bork
Nominated by President Reagan (R), 1987.
Democrats controlled the Senate.
Senate rejected 42-58.

Anthony Kennedy
Nominated by President Reagan (R), 1987.
Democrats controlled the Senate.
Senate confirmed 97-0.

David Souter
Nominated by President George H.W. Bush (R), 1990.
Democrats controlled the Senate.
Senate confirmed 90-9.

Clarence Thomas
Nominated by President George H.W. Bush (R), 1991.
Democrats controlled the Senate.
Senate confirmed 52-48.

Ruth Bader Ginsburg
Nominated by President Clinton (D), 1993.
Democrats controlled the Senate.
Senate confirmed 96-3.

Stephen Breyer
Nominated by President Clinton (D), 1994.
Democrats controlled the Senate.
Senate confirmed 87-9.

Source: Congressional Directory

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