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...a sweatshop of moxie

Tuesday, September 06, 2005

Chief Justice Roberts

A friend of mine was prescient about John Roberts one day being appointed Chief Justice of the SCOTUS.

The only sticky wicket was that he thought it would be later, than sooner -- an opinion I didn't share, since I thought it was Scalia's for the asking.

The death of Chief Justice William Rehnquist, a native of Wisconsin, the grandson of Swedish immigrants, and 33-year veteran of the Supreme Court, bumped up this scenario immediately.

And on Monday we had our response, after a discrete day of mourning.

John Roberts' appointment to the SCOTUS was not as associate justice, but to Chief Justice: a heady prospect for a man with a 2-year-old career as a Circuit Court judge. Heady perhaps, but not undeserved. With accomplished knowledge of the Supreme Court, perhaps the most of his generation of barristers, John Roberts is the home-run candidate for the SCOTUS of all mid-Boomers.

How might this new state of affairs be viewed?

There are many roads to analysis. Here are some thoughts on the topic.

It struck me that though Chief Justice Rehnquist's last hours on earth were a given, and known to all, the exact progress of his thyroid cancer was not known except to intimates.

He made a magnanimous effort to be present at the 20 January Presidential inauguration this year, as well as not being the Justice who stepped down in 2005, indeed, even bravely saying he wanted to carry on with his work as long as he was able to.

It came as a thunderclap to many when the first woman SCJ, Sandra Day O'Connor (a graduate of the same class at Standford Law as Rehnquist, and who actually once dated him!) announced her retirement from the highest bench in the United States.

But actually not to me.

I had heard rumours that she had stated many times she had wanted to step down from her position on the SCOTUS in the administration of a Republican president.

She had allegedly told intimates that she would try to hang on in case President Bush was not re-elected, as it seemed a certainty considering the barrage of opinions who virtualy predicted a Kerry win in 2004.

But then her husband was diagnosed with Alzheimer's, and crucially, Bush 43 was re-elected.

It was on the cards this was her last full year as Justice, but I didn't know if Rehnquist's cancer diagnosis would delay her retirement. I guesssed that it wouldn't, when I saw him enter and leave hospital several times this year, each time gamely saying nothing except he would carry on.

Carry on, implicitly stating, until his death.

Now, it is known that the Justices are not a pal-sy group.

They don't dine together; they barely speak to each other during the day; they are not particularly sociable with each other (although interestingly, the most Conservative Justice, Antonin Scalia, and the most Liberal Justice, Ruth Bader Ginzburg, are said to be very close friends, and their families even socialise together. A wonderful meeting of the minds of two very very different human beings. If they can be so close, then there's hope for all adversaries).

All of this points to them having only a cursory knowledge of each others' lives.

But not Sandra Day O'Connor and William Rehnquist, I think.

Not these two old Law School classmates who dated each other before marriage, and went on to live and practise law in the same State, Arizona. Not these two same, steady, stalwart personalities, so close in age, background, and values.

I wonder, did Justice Rehnquist confide to SDO about just how advanced his illness was?

If so, did this play any role in her decision to step down, almost as if to test the waters for a successor, in order for the President to gain time and political clout with his first appointee (a matter on his most urgent agenda immediately on hearing of Rehnquist's cancer diagnosis)?

I realise this is a massive complôt I am conjecturing, and despite what conspiracists imagine, the world, of backroom deals and nefarious government plots, just doesn't work that way.

Instead I am proposing that it was far more informal than that. It had to do with a word here, a confidence there, in normal interpersonal channels.

What of Roberts then, once this set of events was known?

Despite what anyone says about John Roberts' intellectual gifts, which as a jurist are many, he is as bland as tapioca pudding. His private life is unmessy. His career, laudable but distanced from the public eye. His legal writings, miniscule and impenetrable.

Opponents to his candidacy have had a month-and-a-half to dig up dirt on this fellow, and the most pointed sally was a boarding school joke allusion to his sexuality, in L'Affaire Plaidgate.

It has not escaped anyone's notice that this happened a few days after his appointment.

Since then, despite an aborted New York Times attempt at investigating his childrens' adoptions, bupkus.

Either some are saving their fireworks for today, coincidentally timed for the start of the appointment hearings, or John Roberts is as vanilla as he looks. Even I have more dirt in my short life, than he seems to.

His confirmation to Justice before Chief Justice Rehnquist passed on, was almost assured, especially in the light of being perceived even by MSM as "only" moderately conservative. "It could've been worse, whew".

Because they torture themselves thinking President Bush is the amalgam of their worst fears of Conservatism, almost everything he does is viewed in a prism of extreme.

It was genius, therefore, to choose a solidly conservative man like Roberts, who nevertheless is innocuous enough not to raise hackles unduly.

He is, after all, an old-fashioned type of conservative -- religious but not born-again, country club but not corporate, Brooks Brothers not Armani. People on the left of him understand people like that. He's not the dread Neo-Con embodiment of Conservatism. He, they can handle, goes their thinking.

So without MSM leading the fray, the preachiness and almost unhinged quality of the opposition makes it seem to neutrals that they would throw mud on anyone who President Bush would appoint to the SCOTUS.

It's this irrationality of behaviour that puts off so many people, particularly those who aren't energised at all by politics, which one must own, is still the majority of Americans.

In these so-called Culture Wars, only the very committed pay attention to all nuances of every news story. Most people just form impressions based on what seems reasonable or not.

And condemning John Roberts as a loose-cannon reactionary, as NARAL tried to do, merely reflected badly on them, so much so, their Communications Director had to resign after a smear-attack on Roberts.

In appointing Roberts as CJ, these are the scenarios I see:

  • John Roberts went from associate justice appointee, one of 9 such people, to SCOTUS Chief Justice appointee, the instant head of these nine. The stakes are much more elevated for the opposition now, since they have to mount a more sustained anti-Roberts campaign, else lose face politically. He will be the emblem of what almost everyone realises now will be a more Conservative-leaning Court. Being so young (only 49), he could conceivably still be Justice in the year 2035. His is the most public role of the SCOTUS -- duties range fom the ceremonial, such as administering the Oath of Office to all Presidents after President Bush, to the influential, such as choosing which Justice handles which opinion, etc. This position is not a boondoggle. It's a blessing.

  • The vacancy left by Sandra Day O'Connor is now again unfilled. Since she is considered the make-or-break vote in the most important SCOTUS decisions, it will be difficult for the President to make two moderate-looking appointments. Average Americans will expect him to appoint a SDO-like swing voter, which even the moderate Roberts was known not to be. His party "base" (oh hated term) will expect a more overt social Conservative. Rehnquist was solidly conservative, but not die-hard as Scalia and Thomas are. SDO was not predictably conservative in social issues. The US President then will be less able to appoint a more obviously right-leaning person, say like Edith Jones of Texas, without a more acute flood of protest and inquiry from MSM.

  • The two simultaneous vacancies during the term of a Republican President makes it more difficult for a non-descript Stevens or an emabattled Souter or an aging Ginzburg to resign. They would be practically excoriated by ideologues on the Left, who would see handing such a ripe plum to the object of their hatred, President Bush 43, as almost akin to social treason.

  • The famous Gang of 14 pact, where 14 US Senators, 7 of each political party, made an alliance not to either fillibuster a proposal by Preisdent Bush or to do so only for extreme situations, or to invoke the nuclear option of doing away with the fillibusterm will be sorely tried now. It can't survive if President Bush appoints a more Conservative Justice to fill the newest vacancy. It was always merely a pact for show, for political reasons to pretend that moderates won the day, but if put to the real test, it will crumble.

  • The new appointee might come via a political or bureaucratic career, rather than strictly legal career, as indeed William Rehnquist did. I wonder if ex-Special Counsel Theodore Olson, Edith Jones' good friend and a widower whose wife Barbara perished in the second airplane which struck the Twin Towers, is doing anything important these days? But then, if the President wants to minimise his chances of an endless fight, he could choose a Conservative woman of minority status. How about a Hispanic lady lawyer from South Florida?

  • One cannot know what will happen, but it's safe to say the next appointment to the Supreme Court will be scrutinised much more carefully than John Roberts' was.

    I wish that person every luck. He or she will surely need it.


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