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A curious thing happened on John Roberts Jr.’s way to the Supreme Court. While his role on the Court suddenly grew in importance, from associate justice to chief justice, the drama of his confirmation hearings this week diminished — and the significance of retiring Justice Sandra Day O’Connor’s newly reopened seat soared. Democrats view Roberts as roughly a comparable swap for the late Chief Justice William Rehnquist. Consequently, the only hope now for Senate Democrats and liberal interest groups who want to arrest the Court’s rightward drift is to focus on whomever President George W. Bush nominates to replace O’Connor. In effect, it’s as if O’Connor retired last week, not two months ago. “With Roberts, there would be an extremely long-term [Supreme Court] anchor that would go at least as far, and maybe farther, to the right than Rehnquist,” notes People For the American Way’s Elliot Mincberg. “And that makes the O’Connor slot all the more important as a balance and swing vote.” To be sure, there are real differences Roberts can make as chief, and Senate Judiciary Committee members spent last week scrambling to add to their already voluminous index of questions for the nominee. While matters such as Roberts’ views on key legal issues such as federalism, civil rights, and the Constitution’s commerce clause will still take up the bulk of his hearings, committee Chairman Arlen Specter (R-Pa.) says he will take a “little different approach” now that Roberts is up for the chief justice slot. There are 50 specific responsibilities for the chief justice spelled out by statute, many of which involve his role as the administrator of the Judicial Conference, the policy-making body of the federal judiciary. Most important, however, when the chief is in the majority, he assigns any justice he wants, including himself, to write the opinion, a power that can significantly affect the scope of a decision. “I’m concerned about the conferences of the justices which the chief will preside over, and about bringing the court together,” Specter said in an e-mail to Legal Times. “For example, the recent Ten Commandments cases were inexplicable,” he noted, referring to a pair of 5-4 decisions handed down on June 27, one allowing an exhibit of the Ten Commandments on the Texas Capitol grounds, the other barring the display at two Kentucky courthouses. In these decisions, Specter complained, “you have multiple opinions. You have Justice Breyer writing, concurring, joined in by Justice Souter. And then you have Justice Souter writing a concurring, joined in by Justice Breyer and by Justice Stevens, and you wonder why so many opinions. . . . The point is I would hope that the chief justice would work for consensus.” Specter added, “Roberts may have a real chance to bring the court together.” SHIFTING STRATEGIES While nobody is discounting the importance of this week’s hearings, knowing that all manner of unexpected things can arise at the last minute, even the most ardent Roberts opponents privately admit that he is almost certain to sail through to confirmation. Given that, and given the suddenly enhanced significance of the O’Connor slot, interest groups and others are now looking beyond this week to the future hearings for O’Connor’s replacement. Those hearings could come as early as next month, a few weeks after the Court opens its 2005-06 term. O’Connor has said she will remain on the Court until her successor is chosen. Indeed, on Sept. 8, even before the Roberts hearings had begun, the top four Senate Democrats — Minority Leader Harry Reid of Nevada; his deputy, Richard Durbin of Illinois; Democratic Conference Secretary Debbie Stabenow of Michigan; and New York’s Charles Schumer, who heads the Democratic Senatorial Campaign Committee — sent Bush a polite but emphatic letter requesting a consultation before he names O’Connor’s replacement. “We hope and expect that you will engage in frank and open discussions with Democratic Senators regarding your intentions for filling this vacancy,” they wrote. To make the point that candidates for the Court should be supported by both sides, the Democrats noted that four of the eight sitting justices were unanimously confirmed. The letter also made clear that Democrats’ cooperation in moving the Roberts hearing along is voluntary — with the obvious implication that they could disrupt the flow of Roberts’, or future, Supreme Court hearings if they chose to do so. “There is no legal requirement that the full Senate consider the Roberts nomination prior to the first Monday in October,” the letter pointedly reminds Bush. For Democrats, Hurricane Katrina, Bush’s low poll numbers, and the continuing slog in Iraq have emboldened their party, and so they argue for a “consensus” conservative they too could find acceptable. “Bush was walking a tightrope when he nominated Roberts the first time,” notes the University of Georgia’s John Maltese, who studies the confirmation process. “And it’s trickier now. With the events in New Orleans and sinking poll ratings, there’s less political capital for Bush to spend.” That in turn has given Senate Democrats a rare bit of political leverage in what is typically a zero-sum game, including a more credible filibuster threat if Bush nominates an extreme conservative. A filibuster, of course, has its own political danger. Democrats are wary of the obstructionist label and could easily hand a chit back to the president by blocking a popular nominee. Whether Bush will give in to demands to appoint a conservative that Democrats can support, like Edward Prado, is another matter. Prado is a moderate Hispanic appointed by two Republicans: President Ronald Reagan placed him on the District Court; Bush named him to the U.S. Court of Appeals for the 5th Circuit in 2003. Many Republicans say the current political situation actually argues for bold action. “Bush is of the mind that one generates political capital by fighting and winning,” notes Sidley, Austin Brown & Wood partner Bradford Berenson, who clerked for Justice Anthony Kennedy. “If your stocks of capital are low, the answer is to win a high-profile fight.” THE REPUBLICAN RESPONSE So far, there’s no word from the White House on who has made the latest Court short-list, and Bush is unlikely to give Democrats another bargaining chip before Roberts has his vote on the Senate floor. But the O’Connor nomination puts Bush in a particularly delicate situation. He is politically weaker than he was on July 19, when Roberts was first nominated. And Democrats will pounce on a candidate they believe is too avidly anti-abortion or whose written record gives them ample ammunition. Moderate Republicans will also be keeping one eye toward next year’s elections. Moreover, even Bush’s most ideologically committed supporters concede that appointing another white male to the Court would be nearly impossible to defend. That seems to eliminate reliable and popular conservatives such as the 4th Circuit’s J. Michael Luttig and the 10th Circuit’s Michael McConnell. “There will be pressure to name a minority,” says a Republican strategist who is consulted by the White House on judicial nominees. But, he adds, just because O’Connor was a relative moderate, there is no presumption that her successor has to be one. “In terms of ideological coloration of the nominee, it’s absurd that you have to or could find a clone of O’Connor,” says the strategist. The problem, of course, is that there might be only one Roberts, a nominee who makes conservatives happy while neutralizing his toughest critics with a minimal paper trail, an engaging personality, and longtime involvement in the Washington legal establishment. Short of naming a moderate Republican, which seems unlikely, there are several nonwhite or female candidates whom Bush’s base might rally behind, and against whom Democrats might have trouble justifying a filibuster. Emilio Garza, who sits on the 5th Circuit, is a favorite of many Republican activists. But Garza, appointed by Bush’s father in 1991, is outspokenly anti-abortion. Priscilla Owen, also on the 5th Circuit, “is well-known to Texans and has it upstairs,” notes the Republican strategist. But she’s only been on the circuit bench since June. Then there’s former Deputy Attorney General Larry Thompson, an African-American and former federal prosecutor who has never served as a judge. “He’s a great lawyer and a tough guy not easily swayed by the internal lobbying that goes on, on the Supreme Court,” notes one Hill enthusiast. Thompson, however, has a very sparse paper trail, and it’s not clear what his views are on hot-button social issues. Bush may also take the time — a long time — to find another candidate like Roberts in every way but ethnicity or gender. Or he may appoint longtime friend Attorney General Alberto Gonzales, risking conservative ire to show loyalty and to court a crucial constituency. As the Republican strategist notes, “When you go for a Hispanic, you get a huge countervailing political plus out of it.”
T.R. Goldman can be contacted at [email protected].

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