President Bush’s nomination of Judge John G. Roberts Jr. as chief justice of the United States was a quickly calculated move to inject a younger and more conservative stamp on the upcoming court.
Roberts was already teed up for the Supreme Court seat of Sandra Day O’Connor, who is retiring as soon as a successor is confirmed. The president shifted Roberts to succeed William Rehnquist when the chief justice passed away. Confirmation hearings, which were to have started today, have been postponed out of respect for Rehnquist, and they loom as Roberts’ final hurdle before taking his seat on the court.
Bush will soon make a new nomination for O’Connor. We hope he will consider strong women and minority candidates as well as the usual totem of white males.
In his second Roberts’ announcement, the president touted Roberts “natural gifts” as a leader and he might have added that Roberts has the even temperament that is appropriate for leadership of the federal judiciary. In tapping Roberts, Bush wisely bypassed such polarizing conservatives as associate Justices Antonin Scalia and Clarence Thomas. Roberts is expected to affect the direction of the court for decades to come but his record on the bench is brief and thin, leaving few clues as to his judicial philosophy or activist inclinations.
We urge the Senate Judiciary Committee when confirmation hearings open (perhaps as early as Thursday) to press Roberts on a wide range of issues that typically dominate the work of the court – including matters of commerce, civil rights, national security, the right to privacy, free speech and church-and-state issues, the role of legal precedent and the tenets of criminal justice. It’s incumbent upon Roberts to answer without evasion, short of precursing his vote on any case that will someday be before the court.
Since Roberts was first nominated in July, analysts have dug through his writings – an effort to pierce his modest record on the D.C. Circuit Court of Appeals where he voted to uphold the use of military tribunals to try suspected terrorists and questioned whether some applications of the Endangered Species Act are constitutional. As a young lawyer in the Reagan administration, he showed himself to be right of center and fully prepared to deliver brash verdicts on policy matters. While he was thought to be more conservative than O’Connor, it isn’t known how he stacks up alongside the more conservative Rehnquist.
Sen. Patrick Leahy, the ranking Democrat on the committee, plans to question Roberts about his views on the legality of torture and when the president is considered to be above the law. Others will ask about memos Roberts wrote on affirmative action while in the Reagan administration. The memos went missing from the Ronald Reagan Presidential Library after they were reviewed by Bush administration staffers.
The main event looms as abortion policy. It is famously known that Roberts’ wife is anti-choice, but Roberts has not stated his own views, though he authored a 1990 Justice Department brief that described Roe vs. Wade as “wrongly decided.” Attorney General Alberto Gonzales said recently that it would be appropriate to ask Roberts his personal views, while cautioning that “a judge’s personal view about an issue may tell you absolutely nothing about his or her views about that issue as a legal matter.” True enough, and well worth remembering when the Roberts hearings gather steam.
