If it Pleases the Court: Senators Question Nominee Roberts

Since Supreme Court Chief Justice William H. Rehnquist died on September 3, 2005, there has been a lot of speculation about President Bush’s next nominee.

John G. Roberts Jr., Bush’s first nominee to replace retiring Justice Sandra Day O’Connor, has been re-nominated to the chief justice position, and the Senate conducted confirmation hearings the week of September 12.

It’s not likely that Bush will nominate and the Senate will confirm another nominee by October 3, when the Court reconvenes.

Therefore, Sandra Day O’Connor will continue to serve on the bench until her replacement is confirmed.

Keeping Sandra Day

In her letter of resignation, Justice O’Connor explained that her retirement was "effective upon the nomination and confirmation of my successor." So, technically, she’s still on the Court.

When the Court reconvenes, Justice O’Connor will fully participate in the Court. She will hear arguments and vote. However, Court rulings aren’t official and aren’t announced until each justice has written his or her opinion, which often takes months. It’s likely that O’Connor’s replacement will be confirmed before she writes her opinions, so her vote will no longer be valid. If this situation causes the Court to be split 4-4, it will have to hear arguments anew so that the new justice will be able to decide, vote, and break the tie.

Democrats say that there is no rush to nominate and confirm a second justice since O’Connor is on the bench, but the Bush administration is likely to find someone rather quickly in order to have as much influence as possible over this year’s court docket.

Roberts’ hearing

Roberts’ confirmation hearings began with speeches by the entire Judiciary Committee and introductions by Republicans Richard G. Lugar (Indiana) and John W. Warner (Virginia) and Democrat Evan Bayh (Indiana), 21 speeches in all.

Generally speaking, Republicans emphasized Roberts’ qualifications and the inappropriateness of asking a nominee how she or he would vote in a particular case. Democrats stressed the importance of understanding a nominee’s legal philosophy and determining whether she or he falls within the American mainstream.

Democrat Charles Schumer (NY) talked about the Senate’s responsibility to screen nominees and prevent ideologues from rising to the highest court in the land. He believes that it is not a justice’s job to impose her or his ideas on the law, but rather to interpret the constitution as fairly and objectively as possible.

In his opening statement, Roberts agreed with this claim. He said that he was not a politician and had no platform or agenda. He also promised to safeguard the "independence and integrity of the Court" if confirmed.

On the second day of the hearings, Senators asked Roberts about a variety of topics, including the hot-button issue of abortion.

Although Roberts refused to say directly whether or not he agrees with abortion rights, he did say that the abortion question has been "settled as a precedent" and therefore demands respect. Yet, he also clarified that precedents do not necessarily stand forever.

Further, Roberts explained that a precedent can be overturned if it is no longer workable and if it has been eroded by subsequent Supreme Court decisions. However, he said a precedent should not be overturned simply because it seems flawed.

In sum, Roberts left the abortion question wide open, but he made it clear to anti-abortion activists that Roe v. Wade could still be overturned.

Our system: The limits of representative government

Everyone in public service has a philosophy that motivated her or him to choose that service. When a person accepts a political appointment, it is clear that the appointee and the office holder share a point of view. All of Judge Roberts appointments as a lawyer have been within the Reagan - Bush - Bush organization, upholding their agenda.

When a lawyer becomes a judge, it is as an appointee of a politician. That is where our system of political parties and their beliefs or ideologies cross over into our system of checks and balances. The courts are the only way a representative democracy has to check the misuse of power of the majority. Those senators that are in agreement with the party in power focus on limiting the court’s ability to curb the legislature. Those senators that disagree with the party in power focus on the court’s ability to protect minorities and their rights.

Do you believe that all previously granted rights are settled, or should the Court reconsider them and possibly overturn them? Should a nominee have to make clear his personal values and philosophy? What’s the Senate’s responsibility when confirming a nominee chosen by the party that won the last election?

What do you think?

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Posted on: 9/16/2005