The Supreme Court short list

By Tim Grieve

Published February 22, 2005 9:16PM (EST)

The Supreme Court is hearing cases again today, and it's doing so -- once again -- without Chief Justice William Rehnquist. Rehnquist, who showed up at Bush's second inauguration just long enough to swear in the president, will miss the next two weeks of oral arguments because of difficulties associated with his treatment for thyroid cancer.

With a lot of anonymous sources and carefully worded speculation, the New York Times today offers up the no-duh conclusion that Rehnquist is likely to leave the court when its current term ends this summer, if not sooner. The tougher nut to crack: Who will replace him?

The Times has its short list: current federal appellate judges Michael McConnell, John Roberts, J. Harvie Wilkinson III, J. Michael Luttig and Samuel Alito. While the Times says its list isn't an exclusive one, it's interesting who isnt there. The Times has previously mentioned appellate court judge Edith Jones and former Deputy Attorney General Larry Thompson; they're not on the list today. Neither is Janice Rogers Brown, the California Supreme Court justice Bush has nominated to the U.S. Court of Appeals for the D.C. Circuit.

The Legal Times has a short list, too, and it's almost down to one. While the Legal Times says that McConnell, Wilkinson and Luttig are in the running, the paper quotes a lot of folks who put Roberts at the front of the list. With less than two years on the appellate court, Roberts doesn't have much of a judicial track record, pro or con. That makes some conservatives nervous, but an experience-lite nominee could be a harder target for Democrats to hit. The Legal Times explains:

". . . some conservatives have made unflattering comparisons between Roberts and Supreme Court Justice David Souter, whose short stint on the 1st Circuit before being appointed in 1990 by President George H.W. Bush failed to reveal Souter's moderate-to-liberal leanings on some issues.

"Yet those who know Roberts say he, unlike Souter, is a reliable conservative who can be counted on to undermine if not immediately overturn liberal landmarks like abortion rights and affirmative action. Indicators of his true stripes cited by friends include: clerking for Rehnquist, membership in the Federalist Society, laboring in the Ronald Reagan White House counsel's office and at the Justice Department into the Bush years, working with Kenneth Starr among others, and even his lunchtime conversations at Hogan & Hartson. 'He is as conservative as you can get,' one friend puts it. In short, Roberts may combine the stealth appeal of Souter with the unwavering ideology of Scalia and Thomas."

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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