Double Trouble

Now what happens to the court?

Note: This piece was originally published Sunday, Sept. 4, 2005, and then revised Monday, Sept. 5, 2005, after President Bush announced the nomination of Judge John Roberts for chief justice of the Supreme Court.

In some ways the timing is oddly fitting, if it’s not too ghoulish to say so. Chief Justice William Rehnquist died with his former clerk and apparent ideological successor John Roberts poised to sail through his confirmation hearings and move on to the Supreme Court. This morning Bush chose Roberts to be Rehnquist’s actual successor as well, by bumping him up to nominee for chief justice. With close to a month left until the court’s new term begins, and with some scrambling, the White House still has time to usher Roberts through the confirmation process. The Senate Judiciary Committee might also squeeze in a nominee to replace Justice Sandra Day O’Connor, once Bush chooses someone for a second time to replace her (though O’Connor has said she’ll stay on the court this fall if need be). With all this juggling, Rehnquist’s death turns September, when all matters legal were about to be upstaged by the aftermath of Hurricane Katrina, into a national civics lesson about the court and its future. Twice the vacancies, more than twice the stakes. As the court’s supreme supremacist, as Dahlia Lithwick puts it, one imagines that’s how Rehnquist would have wanted it.

So, what happens now? President Bush has said he’ll move quickly to name a second nominee. Which makes sense, because the president could use a distraction from New Orleans and because the administration spent a month this summer vetting candidates for the court after Sandra Day O’Connor’s retirement. The White House must have figured out its No. 2. Democrats, meanwhile, are trying to slow things down. Roberts’ confirmation hearings, which had been scheduled to begin tomorrow, will be postponed now that he’s the choice for chief. But the administration will try to keep the delay short. Holding up a candidate who seemed likely to win 65 or 70-plus votes would only complicate his chances of easy confirmation.

One theory is that the next slot goes to Alberto Gonzales. That scenario plays out like this: Gonzales didn’t get the nod the first time around because the administration couldn’t get conservatives to line up behind him. Authoring memos that laid the groundwork for interrogation techniques that cross the line into torture—and helping Bush blithely sign off on 151 executions when he was governor of Texas—didn’t help Gonzales because he hadn’t also condemned abortion outright and expressed opposition to affirmative action. But now conservatives have Roberts in the bank. (The notion that he’s the compromise candidate for whom liberals should be grateful makes sense only if it’s really good for the Republican party—not just the Christian right—to people the court with nine Antonin Scalias and Clarence Thomases.) Bush stuck by Gonzales when the right was slashing his tires. The president likes to reward his most loyal henchmen. With the images still fresh on everyone’s minds of destitute African-Americans abandoned for days in New Orleans, a nominee of color would have the right historic ring. It could give a short-term boost to Bush’s popularity ratings and a long-term boost to the GOP’s chances of winning the hearts—for generations—of Hispanic voters.

Another possibility, of course, is that Bush will choose someone much more like Rehnquist and Roberts or to the right of them, at least on the most salient social issues: abortion, gay rights, religion in the public sphere. There are plenty of candidates like that on the administration’s summer shortlist: Judges Michael Luttig, Emilio Garza, and Michael McConnell are perhaps the top three. Any of those choices would mean that Bush’s legacy would likely include decisively moving the Supreme Court to the right. But each could also draw the sort of concentrated, hard-to-shake opposition that has not really built against Roberts.

A third idea is that since Roberts is really Rehnquist’s successor, Bush will choose a woman for this latest opening. Sen. Christopher Dodd, the Connecticut Democrat, this morning resurrected the idea of enlisting O’Connor to stick around. In July, senators including Judiciary Committee Chair Arlen Specter called for Bush to woo O’Connor back to the court as chief justice. But O’Connor seemed wholly uninterested (not that she could have seemed otherwise as long as Rehnquist remained in his seat, but still). The idea that Bush would offer her the job now, and that she’d take it, seems like the wishful thinking of a group of sidelined Republican moderates and grasping-at-straws Democrats.

And for liberals, a different woman nominee could be Justice Medusa. There’s the relatively palatable Judge Edith Clement of the 5th Circuit Court of Appeals, whose name was floated (great decoy!) as Bush’s choice in the 24 hours before he went with Roberts. But her record is so sparse—at least based on what’s currently known—that she could give the right as many or more fits than Gonzales. The other women whose names have come up: Judge Edith Jones, also of the 5th Circuit, and Priscilla Owen and Janice Rogers Brown, who owe their seats on the 5th and D.C. Circuits, respectively, to last spring’s last-ditch deal to save the Senate from nuclear-option meltdown, are all dragon ladies. They’ve rarely met a civil-rights plaintiff for whom they didn’t have scorn. Owen and Jones don’t simply oppose abortion; they’ve expressed deep disgust for the procedure itself and the feminist principles it symbolizes. Brown isn’t just skeptical about big government; she has called for rolling back the whole social compact of the New Deal.

Any jurist can surprise once he gets to the court. And as the new book Advice and Consent by political scientists Lee Epstein and Jeffrey A. Segal points out, a few justices amass records that make the presidents who picked them want to tear their hair out. Epstein and Segal include a nice chart that demonstrates what law students and court-watchers have long known: Earl Warren and William Brennan were far more liberal than the ideology of the president who nominated them (Dwight D. Eisenhower) would have predicted; David Souter, Harry Blackmun, and John Paul Stevens are somewhat more liberal than the presidents who picked them (George H.W. Bush, Richard Nixon, and Gerald Ford respectively), and Byron White, Ruth Bader Ginsburg, and Stephen Breyer are somewhat more conservative than their nominators (John F. Kennedy for White and Bill Clinton for the other two). But with the possible-maybe-who-really-knows exception of Gonzales, the Bush administration Supreme Court shortlist—John Roberts included—is made up of mature and accomplished judges who have spent long careers helping to achieve conservative goals. There’s no reason to think they’d stop once they got to the court. Roberts is the perfect successor for Rehnquist. The question now is whether Bush wants to double the chief’s legacy, or on some fronts neutralize it.