A Radical Roberts Court

By Mary Lynn F. Jones, AlterNet. Posted September 12, 2005.

With a shortened timetable and a higher position at stake, members of the Senate Judiciary Committee will today begin considering the nomination of Judge John G. Roberts Jr. to serve as the 17th chief justice of the United States.

Already, Roberts -- who was first tapped to succeed retiring Associate Justice Sandra Day O'Connor, then nominated to the court's top job after the death earlier this month of Chief Justice William Rehnquist -- had the opportunity at age 50 to shape the court for decades to come. If confirmed, he would be the youngest chief justice since the legendary John Marshall in 1801.

Although the chief justice's vote counts the same as those of his eight colleagues, he has more than 60 statutory duties, which include running the justices' conferences; deciding who among the justices should draft decisions; setting the initial agenda as to which cases the court should consider; and leading the Judicial Conference, which, among other things, issues ethics guidelines for federal judges.

The chief justice also presides over impeachment trials; chooses members of the Foreign Intelligence Surveillance Court, which allows the government to conduct secret national security surveillance; and serves as the head of the judicial branch of government.

Given the responsibilities of the job -- and President Bush's chance to nominate a second candidate to succeed O'Connor -- choosing about a quarter of the court's members will likely be one of Bush's most important acts as president.

Roberts' confirmation hearings, originally slated to begin last week, were delayed due to Rehnquist's death and congressional response to the aftermath of Hurricane Katrina. Senate Republicans hope the Judiciary Committee hearings -- which will include opening statements today, as well as testimony from Roberts and more than two dozen other witnesses -- will wrap up later this week. That would allow the entire Senate to vote on Roberts' nomination the week of Sept. 26, so he can be seated before the court's new term begins on Oct. 3.

Bush nominated Roberts to succeed Rehnquist just two days after the late justice's death, eager to avoid a long and contentious confirmation fight as his administration battles criticism of its response to the devastating hurricane. In announcing Roberts' nomination, Bush remarked, "The Senate is well along in the process of considering Judge Roberts' qualifications. They know his record and his fidelity to the law. I'm confident that the Senate can complete hearings and confirm him as chief justice within a month."

Democrats, however, have not agreed to a timetable, with Senate Minority Leader Harry Reid, D-Nev., saying in a statement that Roberts' new nomination makes Senate consideration of him "even more important. ... The Senate must be vigilant in considering this nomination." Senate Judiciary Committee Ranking Member Patrick Leahy, D-Vt., promised that Democrats will ask "substantial questions" about Roberts.

Last week, Judiciary Committee Democrats repeated their request to Attorney General Alberto Gonzales to be able to look at 16 of the Supreme Court cases Roberts handled when he worked for then-Solicitor General Ken Starr in the first Bush administration. The senators noted that similar documents were made available to the committee during Rehnquist's confirmation hearings for the chief justice job in 1986. An earlier request to Gonzales resulted in a letter from an assistant attorney general who refused to discuss the senators' request.

Roberts -- who once clerked for Rehnquist and carried his flag-draped coffin up the Supreme Court steps as one of his pallbearers last week -- was originally Bush's choice for the court's top position before O'Connor stunned Washington in July by announcing her retirement and Rehnquist pledged to continue serving as chief justice despite battling thyroid cancer. So Bush named Roberts to the associate justice position.

Since his initial nomination in July, Roberts was considered likely to win confirmation for the O'Connor seat and is still expected to be confirmed as chief justice. "Democrats are in open disarray in the Senate," said Jonathan Turley, a law professor at George Washington University. "This is not the type of fight you win by coming late to it."

Last week, Senate Minority Whip Richard Durbin, D-Ill., told Roll Call that Bush did not consult at all with Democrats in nominating Roberts in July, while Sens. Kent Conrad, D-N.D., and Ben Nelson, D-Neb., said they thought the consultation process worked well.

Mary Lynn F. Jones is a Washington-based writer.

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