Roberts for Chief Justice

Chief Justice William H. Rehnquist died of cancer on Saturday at age 80. May he rest in peace.

Today Bush nominated John Roberts to replace Rehnquist as CJ. This means that his nomination to replace Sandra Day O’Connor has been rescinded. Bush will now nominate someone else to fill her seat.

This is a very smart move by George Bush. Roberts clearly has the professional qualifications to serve on the court. Attempts to smear him over the last two months have largely failed. He also seems to have an ideal temperament for Chief Justice – well suited to building majorities as needed, much more so than Antonin Scalia, for example. Some on the right remain concerned that Roberts is not sufficiently conservative, but the record that is emerging points to a man who is solidly conservative though not an ideologue.

Reports are that Democrats privately concede that they cannot stop the nomination. What this means is that it is very possible that Roberts will be seated as Chief Justice when the court opens its term in October. This is important, because the CJ (among other administrative duties) assigns opinions in any case in which he is in the majority. This can be a very significant power when exercised. By choosing the author of the court’s opinion the CJ can effectively strengthen or weaken the holdings. This is true even on cases with which he disagrees – a canny CJ can join the majority in a case where his vote won’t decide the case (5 other votes in favor) simply to assign the opinion to a justice that will write the least compelling or far reaching opinion. If the CJ seat remains open then this power is exercised based on seniority, meaning liberal Justice Stevens. It is clearly in GWB’s interest to place his own nominee in the CJ seat as soon as possible.

An added benefit to the choice is that with the O’Connor seat now open again, SDO may return to the court in October until her replacement is found. Her resignation in June was conditional on her replacement’s confirmation, although she could of course amend that at any time. If she does continue to serve then the court will not be faced with the prospect of having only 8 members (assuming Roberts is confirmed) evenly split between nominally liberal and conservative factions. A court that splits 4-4 simply affirms the lower court holding by default and is a recipe for an ineffectual court. Not to mention that fact that SDO is at least somewhat conservative.

Now, there is more than short term procedural moves at stake here. Elevating Roberts would be a bad idea if he were not a good candidate. But from what I have read I feel confident that he is a good choice