Roberts Tapped for Chief Justice

By David G. Savage and Henry Weinstein

Sept. 6, 2005 12 AM PT

Times Staff Writers

WASHINGTON — President Bush moved quickly Monday to replace the late William H. Rehnquist on the Supreme Court by nominating Rehnquist’s onetime law clerk, Judge John G. Roberts Jr., to be the nation’s 17th chief justice of the United States.

Bush had originally nominated Roberts in July to succeed Justice Sandra Day O’Connor.

The switch permits Bush to replace the conservative chief justice with a 50-year-old appellate court judge who appears to be an ideological twin, and would place the future of the court in the hands of a chief justice who could shape it for a generation.

Because Roberts’ nomination for O’Connor’s seat had been generally well received, the White House and Senate Republicans expect he will be confirmed as chief justice before the first Monday in October, when the Supreme Court begins its new term.

The Oval Office announcement of Roberts’ new nomination came less than 36 hours after Rehnquist died at his home in Arlington, Va., and a day before the Senate Judiciary Committee was to open confirmation hearings on Roberts’ nomination as an associate justice. Those hearings were put off until at least Thursday.

“It is in the interest of the court and the country to have a chief justice on the bench on the first full day of the fall term,” Bush said. He added that Roberts’ “striking ability as a lawyer and his natural gifts as a leader” made him an ideal choice to be chief justice, despite his relative youth.

Roberts had been the first choice of White House lawyers as a successor to Rehnquist, who had been diagnosed with thyroid cancer in October and was widely expected to retire in June, at the end of the court’s 2004-05 term.

Roberts was selected as O’Connor’s successor because she retired, and because Rehnquist said he had no intention of leaving the court.

When she wrote to Bush about her plans to retire, O’Connor said she would remain on the court until her successor was confirmed, and she reiterated that sentiment Monday.

Intense speculation again focused on who would replace O’Connor, the court’s swing vote on issues such as religion, abortion and affirmative action. Bush said Monday that he would choose her successor in a “timely manner.”

If the president nominates Atty. Gen. Alberto R. Gonzales or Judge Edith Brown Clement from the federal appellate court in New Orleans, the change may not tip the balance of the court to the right. Both are seen as moderate conservatives, somewhat in the mold of O’Connor.

Bush could select a nominee with more conservative credentials, such as Judges J. Michael Luttig and J. Harvie Wilkinson III of Virginia, Edith H. Jones of Texas or Janice Rogers Brown, the former California Supreme Court justice who was confirmed this summer to the U.S. Court of Appeals for the District of Columbia Circuit. Any of those nominations would set off a political battle in the Senate.

Bush also could turn to Judges Emilio Garza or Priscilla R. Owen, both Texas conservatives, or to Larry D. Thompson, a former deputy attorney general who is highly regarded by Bush insiders and who serves as general counsel to PepsiCo Inc.

Gonzales and Garza are Latino, and Thompson and Brown are African American. Many legal analysts said Monday that they expected Bush to choose a woman or a member of a minority group to fill O’Connor’s seat.

“I expect intense pressure on the president from the loyal opposition to nominate as moderate a voice as he can find for the O’Connor replacement,” said Pepperdine University law professor Douglas W. Kmiec. That bodes well for the prospects of Gonzales or Clement, he said.

“The realpolitik of the situation is a president who is low in the polls, facing considerable difficulty externally with Iraq and internally with [Hurricane] Katrina will have more difficulty holding his party together than not,” Kmiec said. “That will not augur well for a ... conservative nominee.”

Washington lawyer Brad Berenson, who worked in the Bush White House and clerked for Justice Anthony M. Kennedy, agreed with Kmiec. He said Jones, in particular, would face a “brutal confirmation battle.”

Northwestern University law professor Steven G. Calabresi, a former law clerk to Justice Antonin Scalia and one of the founders of the Federalist Society, a conservative legal group, contended that Bush’s political problems with hurricane recovery efforts would not affect his decision.

“I really think the president regards these decisions as among the most consequential of his presidency,” Calabresi said. “He will do what he thinks is right for the country regardless of its immediate impact on his political standing. That doesn’t necessarily mean he will do something confrontational.”

John A. Maltese, a political scientist at the University of Georgia and author of “The Selling of Supreme Court Nominees,” said there were political and personal reasons for the president to choose Gonzales, a longtime colleague whom Bush, as governor of Texas, had appointed to the state Supreme Court.

“Presidents for a number of years have been eager to appoint the first Hispanic, both for diversity purposes and in terms of courting electoral votes,” Maltese said. “Gonzales is certainly a very close personal friend to the president, and Bush strikes me as someone very loyal to a friend.”

The new Roberts nomination was praised as a smart move by conservative activists and some independent analysts.

Bush’s switch “makes a lot of sense. He now knows with near certainty that Roberts is a survivor who has been vetted by the press and the legal establishment,” said Stephen Gillers, a New York University law professor and legal ethicist. “No skeletons have been found, nothing that could possibly derail his confirmation despite some opposition from progressive groups.”

He said Roberts’ confirmation was “a virtual shoo-in.”

Jay Sekulow, counsel for the American Center for Law and Justice, said conservatives would be reassured because Roberts was highly qualified and would not “legislate from the bench.”

“There could not be a better person for such an important position than John Roberts,” said Sekulow, who has advised the White House on judicial appointments.

Kmiec predicted that Roberts would exert real influence as chief justice.

“He is genial, warm, welcoming, not quick to take umbrage or disagree,” Kmiec said. “He will be very effective by wit, intelligence and the ability to build coalitions for particular points of view.”

Justice Kennedy, who was appointed by President Reagan, has infuriated some conservatives by voting to uphold abortion rights and gay rights, and Kmiec suggested that the presence of Roberts as chief justice could “cause Kennedy to be more faithfully conservative.”

Liberal groups already critical of Roberts said the new nomination raised the stakes in the confirmation hearings.

People for the American Way called Roberts “unfit to be chief justice of the United States.” Roberts has shown “hostility to the laws and remedies that protect Americans from discrimination,” the group said.

Wade Henderson, executive director of the Leadership Conference on Civil Rights, questioned whether Roberts could “serve as the steward of the rights, liberties and freedoms of all Americans for generations to come.”

NARAL Pro-Choice America said it was flatly opposed to Roberts, and the National Organization for Women called him “an anti-women’s rights, anti-civil rights judge.”

“It is an outrage and an insult to the women of this country that George W. Bush has nominated such a jurist to be chief justice of the United States,” said NOW President Kim Gandy.

Several Senate Democrats said the confirmation hearings would take on added importance. Staff aides said Democrats might renew their demand to see memos that Roberts wrote as principal deputy solicitor general in the George H.W. Bush administration, his highest post in government until his appointment two years ago to the U.S. Court of Appeals for the District of Columbia Circuit.

“The chief justice must be committed to moving America forward toward equality, opportunity and fairness for all Americans,” said Sen. Edward M. Kennedy (D-Mass.), a senior member of the Senate Judiciary Committee. “Thus, John Roberts bears a heavier burden when he comes before the Senate.”

Kennedy said the Senate should know the president’s nominee to replace O’Connor before it confirmed Roberts. “The American people care deeply about the overall balance of their highest court,” he said.

Erwin Chemerinsky, a law professor at Duke University who last week led a group of liberal law professors in announcing opposition to Roberts, said Bush’s switch “dramatically changes the dynamics of the Roberts confirmation.”

Roberts “by all accounts seems to be like Rehnquist ideologically. This means the focus has to be on replacing O’Connor, because it is that seat in the short term that could change the outcome of so many cases,” Chemerinsky said. Viewed through this prism, Roberts’ path to confirmation could be eased.

“If Bush tried to replace O’Connor with Jones or Luttig, the Democrats will go to the wall” on both nominees, Chemerinsky predicted. “The flip side is that if Bush picks a more moderate conservative, Democrats will let both go through because it does not change the overall balance of the court. Again, this makes the crucial issue who replaces O’Connor.”

Savage reported from Washington and Weinstein from Los Angeles.

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Varied backgrounds

Only three of the 16 chief justices of the United States were elevated from associate justice roles. Here’s what the 16 were doing immediately before they became chief justice:

John Jay: Secretary of Foreign Affairs (Under the Articles of Confederation; office changed to secretary of State under the Constitution)

John Rutledge: Chief justice, South Carolina Court of Common Pleas

Oliver Ellsworth: U.S. senator from Connecticut

John Marshall : Secretary of State

Roger B. Taney: Secretary of the Treasury

Salmon P. Chase: Secretary of the Treasury

Morrison R. Waite: President, Ohio Constitutional Convention of 1873

Melville W. Fuller: Private practice in Chicago

Edward D. White: Associate justice, Supreme Court

William Howard Taft: Law professor, Yale University

Charles Evans Hughes: Judge, Permanent Court of Arbitration, The Hague

Harlan F. Stone: Associate justice, Supreme Court