After Roberts

As liberal groups continue trying to derail Bush's judicial nominee, they now must worry: Who's next?

Published September 5, 2005 9:14PM (EDT)

Even before he gets the job, John G. Roberts Jr. has been given a promotion. On Monday, President Bush upped the stakes on Roberts' confirmation hearing by nominating him for chief justice of the Supreme Court, a position vacated over the weekend by the death of William Rehnquist. If confirmed, Roberts will be given more power than any other American jurist, and will affix his name for a generation on the development of constitutional law.

But for liberal court watchers, Roberts' new job description -- and the death of Rehnquist -- has deepened fears of a broad shift in America's judiciary. Sandra Day O'Connor's seat on the court is again vacant, opening up the possibility of another, more ideological pick. Among those appellate judges said to be under consideration are federal appellate judges Edith Jones, Edith Clement, J. Harvie Wilkinson III, J. Michael Luttig, Emilio Garza and Priscilla Owen. Two Justice Department officials, Attorney General Alberto Gonzales and former Deputy Attorney General Larry Thompson are also on the short list.

"This profoundly shifts the dynamics of the Roberts confirmation process," says Erwin Chemerinsky, a professor at Duke Law School who opposes Roberts' confirmation. "My guess is he is going to be much like William Rehnquist. That then raises the question again, Who is going to replace Sandra Day O'Connor?"

Court watchers have made a science of counting votes on key issues like campaign finance reform, access to abortion, and affirmative action. On these questions, Rehnquist was often a reliable conservative, siding with the minority of the court. O'Connor, on the other hand, was a swing vote who helped write majority decisions, a fact that makes her replacement far more important to the future direction of the Supreme Court. "The Democrats want to look at the two picks together," said Chemerinsky.

President Bush may not give them the chance. The hearings to confirm Roberts have been delayed until later this week or early next week. It is unknown whether Bush will announce his replacement before then. Democrats on the Judiciary Committee are already protesting the timetable. "Before the Senate acts on John Roberts' new nomination ... we should know whom the President intends to propose to nominate as a replacement for Sandra Day O'Connor," said Sen. Edward Kennedy, D-Mass., in a statement released Monday. "The American people care deeply about the overall balance of their highest court."

There is a clear precedent for Kennedy's concerns. In June of 1986, President Ronald Reagan put forward two nominations for the high court within four days -- William Rehnquist for chief justice and Antonin Scalia for associate justice. At the time, Senate Democrats made a strategic decision to focus their fire on Rehnquist, who had a controversial record on civil rights and other issues. Scalia got a pass, confirmed by a Senate vote of 98 to 0 after refusing to answer many questions. He has since become one of the court's most controversial justices, often arguing for a dramatic rewriting of modern constitutional jurisprudence. "Given the timing of the two nominations, the Senate didn't have ample opportunity to fully scrutinize Scalia's record," says Nan Aron, the president of the Alliance for Justice, a coalition of more than 70 liberal interest groups. "Obviously, the Democrats will not make the same mistake."

For now, Senate Democrats and liberal interest groups are continuing their calls for a critical appraisal of Roberts, noting the additional responsibilities Roberts will bear as the chief justice, a position Sen. Chuck Schumer, D-N.Y., called "the second most powerful position in the land." Known commonly as the "first among equals," the chief justice has powers that are mostly administrative, including the ability to lead discussions and assign some opinion-writing responsibilities. Ralph Neas, the president of People for the American Way, a group that opposes Roberts, issued a statement Monday saying Rehnquist's death "exponentially" raises the stakes of the coming confirmation fights. "The chief justice has unique power and influence as the nations highest-ranking judge," Neas said of Roberts' new nomination. "We will vigorously oppose his confirmation."

Such talk belies the slim hopes Democrats have of actually blocking or denying Roberts' confirmation, barring an unforeseen development. At best, Democrats may only hope to use the Roberts hearings to showcase an alternative vision of law and leadership. "It's a chance for Democrats to help to define their views on different issues facing the country," says Jim Manley, a spokesman for the Senate's Democratic leader, Harry Reid of Nevada. "There will be a chance for members of the committee to share some concerns, on civil rights issues, for instance."

The Roberts hearings come at a time of some message confusion for Democratic leaders. Though the president has been criticized in the press and in polls for his response to Hurricane Katrina, the ongoing war in Iraq, and growing economic concerns, Democrats as a group have stayed largely silent during the August recess.

In fact, Democrats, with the exception of a single unified stand on Social Security privatization, still appear to be regrouping from last year's presidential election. A few weeks ago, Howard Dean, the leader of the Democratic Party, was asked a simple question on CBS's "Face the Nation": "What is the Democratic Party message?" Dean didn't really have an answer. "You know, we're going to have a -- we're going to work through all this stuff and we're going to have a national message," he told CBS's Bob Schieffer.

Over the coming weeks, the Judiciary Committee's eight Democrats will spend hours grilling Roberts over his views on everything from civil rights to the treatment of prisoners of war to the legality of abortion. They hope not only to learn more about Roberts' views but to show America their own. "Democrats are going to highlight issues that they feel are on the top of the list for all Americans," says Israel Klein, a spokesman for Sen. Schumer.

Those issues are likely to include equal rights for women, environmental protections, and religious liberty and disability rights. Sen. Kennedy, one of the committee's longest-serving members, plans to grill Roberts on his work as an advisor to two Republican presidents who opposed, or questioned, many Democratic civil rights initiatives. During the 1980s and '90s, Kennedy often took positions on the other side of issues that Roberts worked on -- issues ranging from the Voting Rights Act to Title IX, a law that prohibits discrimination against women in federal funding. "It's interesting that they are now coming face to face," says Stephanie Cutter, Kennedy's spokeswoman.

Sen. Dianne Feinstein, D-Calif., has announced she will stake out her own turf in the coming hearings. In a speech two weeks ago, she said she would focus on women's issues, including abortion. "As the only woman on the committee, I have an additional role to play, representing the views of 145 million American women," Feinstein said. "Government should not be allowed to interfere in personal family decisions and overrule the most difficult choices a family can make."

Other senators will be crafting their comments and questions to fit their larger ambitions. Two Democrats on the Judiciary Committee, Wisconsin's Russ Feingold and Delaware's Joe Biden, are considering presidential runs, as is Sen. Sam Brownback, a Republican from Kansas. Two other Democrats, Illinois' Richard Durbin and New York's Schumer, are rising through the ranks of the Senate leadership.

Some still express hope that Roberts' nomination can be stopped. On Friday, Neas was quoted in the New York Times saying that he was increasingly confident that Roberts could be defeated. "There is growing evidence that the confirmation would move the court dramatically to the right," he told the Times, before Rehnquist's death.

Asked about Neas' comments later that day, Elliot Mincberg, the legal director for People for the American Way, described Neas' comments as hope, not optimism. "I think we will have a much better idea whether hope turns into optimism after these hearings," Mincberg said.

Over the coming week, senators from both parties will pay their respects to Justice Rehnquist, who will lie in repose in the Great Hall of the Supreme Court on Tuesday and Wednesday. A funeral has been scheduled for Wednesday. It will be followed by a private burial at Arlington National Cemetery.

By Michael Scherer

Michael Scherer is Salon's Washington correspondent. Read his other articles here.

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