First Thoughts on the Tactics of Nominating John Roberts for Chief
The President’s nomination of John Roberts to be Chief Justice of the United States simplifies, but in other ways complicates, the effort to give the Supreme Court a full complement of nine Justices. It is certain now, just as it was when news of William Rehnquist’s death was released Saturday night, that there is no practical way to confirm two nominees by the Term’s effective start in late September or its formal start on October 3. The looming questions now involve the timing of the Roberts confirmation hearings, whether Justice O’Connor will take her seat at that time, and how long it will take to confirm her successor.
The President’s announcement will initiate a pro forma process in which the nomination of John Roberts to Sandra Day O’Connor’s Associate Justice seat is withdrawn and a new nomination for the seat of Chief Justice is sent to the Senate. The President’s statement — which focused on having Judge Roberts on the Court by the start of the Term — seemed carefully calibrated to urge the Senate to move promptly but not express an expectation as to when precisely the hearings would start. A delay of the Roberts hearings of a few days was already almost certain in light of William Rehnquist’s funeral on Wednesday, and now a further delay — perhaps until next Monday — seems very likely as a nod to the significance of the new position to which Roberts has been nominated.
Justice O’Connor now faces a dilemma. She presumably has made plans for the fall consistent with her personal reasons for leaving the Court. She knows that returning to the bench — only to be replaced a month or so later — provides the Court little or no practical benefit because a Justice’s vote does not count unless she is sitting at the time the case is decided, a process that generally takes at least two months for even non-controversial cases, and generally three or more months for the closely divided five-to-four cases in which her vote would be dispositive. On the other hand, Justice O’Connor is a committed public servant, and the fact that she would be inconvenienced would not dissuade her from returning to the bench if her presence was required.
As things stand, Justice O’Connor will return to the Court. But that could change. Justice O’Connor’s resignation follows the model of Thurgood Marshall’s, which was similarly effective upon the confirmation of a successor. But when Justice Thomas’s confirmation was delayed, Marshall submitted a second resignation letter leaving the Court effective immediately. Marshall (unlike O’Connor) was sick and largely unable to perform the duties of office, but nothing would prevent Justice O’Connor from taking the same step of accelerating her departure from the Court.
The President’s statement that he would nominate a successor for Justice O’Connor “in a timely manner” — which can be read to mean “not until the Roberts hearings are done” — suggests that the President may himself be relying on the fact that she would continue to sit in the meantime. If so, the calculus of the White House would likely be that they are better off decoupling the two sets of hearings. But there seems inevitably to be some cost to the Administration. The nomination of a doctrinaire conservative to replace the Chief Justice could have been explained as ideologically neutral for the Court, as the new nominee would not move that seat to the right. Moving Judge Roberts to the seat of Chief Justice, by contrast, opens up again the debate over what Democrats will describe as the “O’Connor” seat — that of a moderate conservative. There seems a marked difference, for example, in substituting Michael Luttig for Sandra Day O’Connor than for William Rehnquist.
The speed with which the President acted this morning suggests that Roberts was at the top of the White House’s list all along for the mistakenly anticipated resignation of the Chief Justice this summer. Recent developments — in which there has been some inevitable opposition but no serious threat to the confirmation has emerged — likely only solidified the President’s views of the matter. What is obviously unclear is to whom the President will turn for the slot of Associate Justice.
Why couldn’t Roberts still be viewed as being O’Connor’s replacement? In other words, why can’t it be the case that (1) O’Connor’s replacement will be the new Chief; and (2) Rehnquist’s replacement (whenever that occurs) will be an Associate Justice? Who says that can’t happen?
Comment by Stuart Buck — September 5, 2005 @ 9:52 am
After all, we have all been assuming that naming a “Chief” is separable from naming a “Justice.” Bush could — at present — name Scalia to be Chief, name one nominee to fill Rehnquist’s spot, and another nominee to fill O’Connor’s spot. But were that the case, it is not as if Scalia would have filled Rehnquist’s spot as a Justice. That vacancy would still be open.
Doesn’t this then mean, logically, that even though Roberts is being named “Chief” as well as a “Justice,” he is not necessarily “replacing Rehnquist”? Instead, he could be viewed as “replacing O’Connor and at the same time being named Chief.”
Comment by Stuart Buck — September 5, 2005 @ 9:58 am
No one wants to talk about why Judge Roberts not only should not be confirmed as a Justice to the Supreme Court, but should not be confirmed as Chief Justice. Allow me to speak about the issues I wrote to Senators Specter and Kennedy about:
During 1993, I was involved in a California State Court case in which I was a victim of domestic violence (and injured because of it), and needed necessary reasonable accommodations under the Americans With Disabilities Act to enable me to fully and equally participate in access to the Court. At stake were my fundamental constitutional rights to parent my own child, in a grandparent visitation of the type in which we now know numerous Courts have struck down States’ grandparent visitation statutes as unconstitutional.
The California Court refused to comply with the reasonable accommodations civil rights mandates of Title II of the Americans With Disabilities Act and refused to protect me from violenc against women.
Instead, the State Court forced the accommodation burden (both performing the accommodation tasks and paying for it) on my mother, Claire A. Day, who was the other grandparent and had her own mental disability requiring accommodation conrary to the command of Title II of the ADA. My mother was not trained in accommodating an autistic, was unable to withstand the burden of performing the accommodation(as a scribe) and paying for it as well, and, finally, at the end of her rope in an act of desperate frustration, committed suicide by self-immolation in a public Equal Protection and violence against women protest.
During 1993 under the tenure of Judge Roberts at the Department of Justice, I wrote to the DOJ complaining about violations of my Americans With Disabilities Act rights and rights respecting violence against women and asked for the DOJ to help me enforce my rights against the California Court under the Americans With DIsabilities Act, pleading that the disability violations were making my mother suicidal. There are many accounts of autistics’ parents and caretakers committing suicide because the burdens placed on them are too many.
The DOJ refused to help me enforce my rights during 1993, my mother thereafter suicided during 1994, and between 1989-1993, at the time the DOJ regulations at 28 CFR pt 35 were being drafted and promugated, during Judge Robert’s tenure at DOJ, glaringly omitted from the regulations were any requirements that autistic, learning, and cervically disabled (or quadraplegics) be provided oral-spoken methods of making (communicating) DOJ discirmination complaints and to require public entities reasonably accommdoate this class of disabled by providing oral-spoken (not written) formats for communication.
What I am trying to say here, is during Judge Roberts tenure at DOJ, policies of deliberate exclusion against this class of the disabled were approved, and I have no doubt that but for the anti-violence against women/anti-civil rights/anti-disability philosophies and policies in which Judge Roberts participated in formulating at DOJ from 1989-1993 the horrendous fire-burning death of my mother would have been prevented through vigorous DOJ Title II Americans With Disabilities Act enforcement of the fundamental right to reasonable accommodations access against the noncompliant California Court.
Moreover, this class of autistics are some of the very developmentally disabled who were dumped out of institutions by the Reagan era policies without a proper safety net, and who are now the primary victims of Bush administration “conservative compassion” policies to: cut Social Security disability benefits, cut medical care, expand non-dischargeability in bankruptcy of student loans these disabled have undertaken to access employment opportunities, restrict EEOC Title I ADA enforcement against employers who refuse to provide accommodations to enable the employability of this class, cuts to assistive technology funding to enable this class faciulitated communication devices, cut sufficient readily available affordable housing; etc. It would appear that what is going on here with this class of disabled is no different than the Bush “let them all die” response to New Orleans African Americans in Hurricane Katrina.
Even Thomas Jefferson was an autistic, a lawyer, and a founding father, so these policies of anti-disability civil rights due to lack of disability civil rights enforcement policy promoted by Judge Robert’s DOJ tenure for this class of disabled makes no sense and is antithetical to every quality Americans should be seeking in a Supreme Court Justice.
Why isn’t anyone talking about this, and the missing files from this 1989-1993 DOJ period of vetting Judge Roberts for the Supreme Court — and now Chief Justice?
Comment by Mary K. Day-Petrano — September 5, 2005 @ 1:38 pm
Mary,
Firstly, correct me if I’m wrong, but wouldn’t the tenure of Roberts in the Bush administration, in 1993, have lasted no more than the first 20 days and 12 hours of January, whereafter President Clinton and his administration would have been running the Justice Department? You note that you were involved in a California state cout case “in 1993″ - in January 1993? Because if it wasn’t, surely, the “DOJ [that] refused to help [you] enforce [your] rights during 1993″ would have been the Clinton DoJ, with which Roberts had no connection?
In any instance, you write:
“Judge Roberts not only should not be confirmed as a Justice to the Supreme Court, but should not be confirmed as Chief Justice.”
Do you believe that, should the Roberts nomination be somehow defeated by the Senate, President Bush will nominate Lawrence Tribe or Jack Balkin for the Supreme Court? Do you envision the elevation of Justice Ginsburg to the Chief Justiceship?
I hate to seem excessively glib, but who is it that, realistically, you want President Bush to nominate? Is there anyone that a conservative Republican President could nominate, and a Republican Senate would confirm, who would be any more palatable to you than John Roberts? And if not, what exactly is it you think will come of defeating Roberts’ nomination? Perhaps the reason that nobody on the Hill “is talking about this” is because they are too busy breathing a sigh of relief that they got so moderate a nominee compared to what they expected?
It seems to me that the people who should be most leary of Roberts are those who voted for President Bush based primarily on his promise to appoint more Justices in the mold of Scalia and Thomas, a promise he has, by all available evidence of Roberts’ views, singularly failed to deliver. A conservative, perhaps - but no originalist.
Incidentally, I wasn’t aware that there was any significant evidence that Jefferson was autistic, beyond that which was offered in a roundly-pilloried book a few years ago. I’m not saying he certainly wasn’t, but you present it here as a statement of undisputed fact, something singularly unjustified by the facts and scholarship to hand.
Comment by Simon — September 5, 2005 @ 4:36 pm