This morning, President Bush nominated John Roberts for the Chief Justice position directly. It's probably a smart move politically, since it appears that Roberts is set to sail through the confirmation process easily, but as I said yesterday I don't like the idea of imposing a CJ from outside the court. I think that's especially true when the court is highly divided, as it is now. I think one of the primary reasons why Rehnquist was so effective as CJ was that he had 14 years on the court by the time he was nominated. He knew how the court worked from the inside, knew the egos and intellects involved and how to deal with them, and had seen many examples of what not to do by watching Warren Burger. Roberts has none of those things, nor would anyone else coming from the outside. It's not a slam on Roberts himself, who by all accounts is highly capable and will likely grow into the position. But at a time when the court is more divided than ever, I think it's a bad idea. But man, what I wouldn't give to be a fly on the wall during the fall term.
So now we know that there will only be two confirmations and not three, so the speculation will concern who will be nominated for the second associate spot. The short list is no doubt essentially the same as before - Gonzales, Garza, Clement, Luttig, Wilkinson, Jones and maybe one or two others. Some are speculating that Bush will have to name a woman for political purposes, but I think a Hispanic is more likely. My early betting line is Garza at 5-1, Gonzales at 6-1. The over/under on how many times over the next few weeks the President mindlessly says his nominee will "faithfully interpret the Constitution" and the number of times Ralph Neas will declare that the nominee will "turn back the clock" on civil rights, women's rights, environmental laws, etc - regardless of who the nominee actually is - will be set at 1400.
Update: Within 10 minutes of writing this and something similar on the ReligionLaw listserv, I got this thoughtful response from Thomas Berg, a law professor from Minnesota:
On the other hand, Earl Warren by all accounts was immediately successful as a leader coming in from the outside (see, e.g., Brown v. Board of Ed). And Harlan Fiske Stone, who'd been an associate justice for 15 years, was quite unsuccessful as chief justice, letting conferences meander and overseeing the Court sliding into some of its worst personal acrimony ever (as opposed to now, when the justices don't get along badly even though they're closely divided on issues). Burger was just a difficult, arrogant personality, and Rehnquist a very suitable one (combining businesslike habits with a light touch and good sense of humor). I think that it has more to do with personal leadership skills -- of which Roberts appears to have many -- as opposed to actual experience. And even on the latter score, Roberts is as knowledgable about the Court and these justices as it's possible to be
without having been a justice himself. And they're quite familiar with him too.
All excellent points, certainly. I think the thing I'm most curious about is how Scalia will handle him. Scalia is by far the strongest personality on the court as well as the largest ego, and he was openly campaigning for the CJ position. And he's also, of course, bluntly outspoken. This could be very interesting. Unfortunately, it all takes place in private.
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"This could be very interesting. Unfortunately, it all takes place in private."
Therein lies the rub. The twenty-five plus years it takes for the documents, artifacts, anecdotes, and memoirs to be make available certainly encourages speculative fiction as the source for historical analysis. Now that Rove seems to be coming out of his Plamegate funk, and retaking control of the strings(Bush being more "on task," Administration officials dancing for the MSM crowd, speechwriters spewing platitudes and aphorisms), it is somewhat exciting to speculate on that conversation last night---"Yes Mr. Justice, I know, but this is the way it has to be! Well frankly Antoni i don't give a damn, and if you know what is good for you, keep your mouth shut!"
...I don't like the idea of imposing a CJ from outside the court.
The problem is, there is no obvious candidate for CJ on the current court. Most are too old to be effective, and those who aren't are too divisive (I'm referring to Scalia and Thomas). Your correspondent's mention of Earl Warren is a good example, but he had also had experience as a manager (AttyGen and Governor of CA) before he assumed the Chief Justiceship.
In my view, Anthony Kennedy is the obvious choice on the court. He's generally conservative, with a bit of a libertarian streak as well. But he would anger the social conservatives based solely on two cases, so Bush won't do that. I actually think that Thomas would make a good CJ as well. I think it would be interesting to see how it might change him, as it changed Rehnquist. When Rehnquist joined the court, he was very much in the Thomas role of the lone dissenter, filing long and detailed dissents in cases to get his position put out there for future courts. As CJ, that reduced rather dramatically as he sought to forge consensus and collegiality.
Kennedy might have been the obvious choice 5 or even 10 years ago. The problem is, he's too old for the Bush people.
I actually believe that the German system is preferable. The judges are appointed for 18 year terms, and cannot be reappointed. This lifetime appointment feature of the US system is ridiculous.