New Battle Looms as Roberts Is Sworn in

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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WASHINGTON – John Roberts Jr. was sworn in yesterday as the 17th chief justice of the United States at a formal White House ceremony attended by President Bush, other justices of the Supreme Court, and a cast of politicians and aides who have already begun gearing up for a battle over the high court’s next nominee, which could well evolve into one of the most divisive political engagements in a generation.


Twenty-two Democrats joined all 55 Senate Republicans in voting to confirm Chief Justice Roberts yesterday morning in the formal conclusion of a process that began nearly three months ago, when Mr. Bush asked the 50-year-old federal appeals court judge to replace Justice O’Connor, who had announced she was retiring. Mr. Bush withdrew that nomination six weeks later upon the death of Chief Justice Rehnquist and nominated Judge Roberts for the top spot.


Because he is replacing the conservative former chief justice rather than Justice O’Connor, Chief Justice Roberts will not upset the tenuous 5-4 split that the court has maintained for more than two decades on contentious social issues like affirmative action, the death penalty, and, most important for many of the 23 senators who voted against Chief Justice Roberts, abortion. It was because this balance is expected to remain intact under Chief Justice Roberts, activists on both sides said, that he got as many Democratic votes as he did.


Mr. Bush faces a far bigger challenge in naming a potential replacement for Justice O’Connor. With the president’s overall popularity at a five-year low, ethics scandals hovering over his two congressional leaders, and even Republicans sniping that his plan for rebuilding the Gulf Coast smacks of the giant entitlement programs championed by Democrats, many are wondering whether he will look to satisfy his base with an overtly conservative pick or avoid a fight that Democrats say he lacks the political capital to win.


The chairman of the Democratic National Committee, Howard Dean, said this week that his party will use any means necessary to thwart the nomination of two judges that Democrats blocked from federal appeals court posts – Janice Rogers Brown, now of the Washington, D.C., Circuit, and Priscilla Owen, now of the Fifth Circuit – prior to a bi-partisan compromise hatched by a the so-called Gang of 14 senators earlier this year.


The compromise, which said that filibusters would be attempted only under extraordinary circumstances, kept Republicans from exercising the so-called nuclear option, a rule change that would allow a simple majority to break a filibuster rather than the current threshold of 60 senators. Some members of the group have since disagreed over what constitutes extraordinary circumstances. At least one of the members, Senator Graham, a Republican of South Carolina, has disqualified ideology as reason for a filibuster.


Senator Schumer, a Democrat of New York who has said ideology is reason to block a nominee, added two more names to the list of nominees that he thinks Democrats would likely seek to block with a filibuster: a court of appeals judge for the Fourth Circuit, Michael Luttig, and a court of appeals judge for the Fifth Circuit, Edith Jones.


“It certainly would be on the table with them,” Mr. Schumer told reporters after the vote. Mr. Schumer also said that the White House counsel whose name has surfaced recently as a strong potential nominee, Harriett Miers, is something of a mystery. “Harriett Miers, in my view, is sort of a Roberts-like pick in that nobody knows how she thinks about the major issues of the day,” Mr. Schumer said, “and in that way it would be a question mark.”


If the president nominates an overt conservative, as his base wants, and Democrats move to block the nominee with a filibuster, the Senate would be plunged into partisan battle that would put Gang of 14 members under intense pressure to choose sides. Republicans could lose as many as five moderate members in a vote over a contentious nominee and still vote to change the rule on the number of senators required to break a filibuster. An even split on the nominee would be decided by Vice President Cheney.


Republican senators indicated this week, though, that Mr. Bush is not interested in testing the limits of the Senate with a controversial pick. “I don’t think the president is looking for a fight,” Senator Cornyn, a Republican of Texas who sits on the Judiciary Committee, told The New York Sun. Some have speculated that the White House, which some expected would name a potential replacement for Justice O’Connor yesterday, is still struggling to find a conservative minority or female candidate as palatable to Democrats as Chief Justice Roberts.


Others said the Democrats will fight any nominee the White House puts forward, given the importance that both sides in the culture war place on Justice O’Connor’s seat. The White House indicated yesterday that it might wait until Monday to make an announcement.


“If Roberts were coming this time, he’d probably draw a filibuster too,” the chief counsel to the pro-Roberts Judicial Confirmation Network, Wendy Long, said. “I think it’s a function of the overall liberal strategy and the fact that they are becoming increasingly desperate.”


Chief Justice Roberts watched the Senate vote on his confirmation at the White House with the president and several of the aides who have assisted him in the process. His wife, Jane, watched the vote from a gallery in the Senate chamber, smiling and clasping the hands of two women at her sides when the final tally was called. Asked for her reaction to the vote, Mrs. Roberts responded with a single word: “Overwhelmed.”


Chief Justice Roberts addressed the crowd at his confirmation hearing, without notes. He thanked Mr. Bush for placing his trust in him and promised to repay that confidence by doing “the best job I possibly can do.” He offered a brief civics lesson on the meaning of the process that had just unfolded, thanked the Judiciary Committee for conducting a “dignified and civil” hearing, and closed by thanking those who had supported him.


“Over the past 10 weeks, many people who I did not know came up to me and offered encouragement and support,” he said. “Many of them told me that I and my family was in their prayers and in their hopes. I want to thank all of those people. I will need in the months and years ahead that encouragement and those prayers.”

NY Sun
NEW YORK SUN CONTRIBUTOR

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.


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