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PINE BLUFFS – On September 3rd, Chief Justice William Rehnquist, 80, lost his fight with thyroid cancer and died at his suburban home in Arlington, Virginia, his wife and two sons at his bedside. In a surprise move early the following Monday, President Bush, who had nominated federal appellate judge John Roberts to fill retiring Justice Sandra O’Connor’s slot, named Roberts to become the Supreme Court’s 17th Chief Justice.
Mr. Bush moved quickly because, “The passing of Chief Justice Rehnquist leaves the center chair empty just four weeks before the Supreme Court reconvenes. It’s 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.”
DELAY, DELAY, DELAY!
Despite the President’s desire to accomplish this by Monday, October 3rd, Democrats succeeded in wringing a brief delay from liberal Senate Judiciary Committee Chairman, Arlen Specter (R-PA), who caved to their demands and announced, “in light of . . . memorial services for Chief Justice Rehnquist,” he would “push back confirmation hearings until Monday, September 12th.”
Why did Democrats try to delay Roberts’s confirmation hearing? With the chair vacant, liberal Justice John Paul Stevens would decide to whom cases will be assigned. He’d also make other decisions that could influence deliberations on important issues before the Court early in the fall term, such as Commerce Clause cases. Liberals seek to manipulate that clause to expand jurisdiction of federal courts by enacting federal laws banning guns in schools and by making state crimes against women into federal cases. Conservatives and Pro-Lifers, on the other hand, hope that clause will be interpreted by “originalist” justices to prohibit partial birth abortion and overturn Oregon’s Death with Dignity Act. There’s a lot at stake.
As I noted (Supreme Court nomination a moment of truth for nation, (WY Catholic Register, 8/15/05) Justice Scalia praised Roberts as “an originalist, a judge who interprets the Constitution faithfully and respects the limits of his own power.” Last August, constitutional lawyer Bruce Fein (Washington Times, 8/23/05) wrote: “. . . the Supreme Court must interpret the Constitution according to its original meaning as mandated by the rule of law and . . . not to achieve particular results. Otherwise, in the manner of Humpty Dumpty, the Justices can make the Constitution mean whatever they want it to mean. Roberts . . . will undoubtedly move the Court toward original meaning.”
Aware of this, some Democrats, notably Leahy (D–NH), ranking Democrat on the Senate Judiciary Committee, and Kennedy (D-MA), called for longer delays. “Before the Senate acts . . . we should know even more about his record, and we should know whom the president intends to propose as a replacement for Sandra O’Connor,” Kennedy said. In view of the reams of material released — more than fifty thousand pages of memos written by Roberts while serving in Reagan’s Justice Department and White House — this is a specious argument; more so because during Mr. Clinton’s impeachment proceedings, Kennedy and many Democrat Senators never bothered to examine voluminous records made available to the Senate by the Special Prosecutor.
Roberts appeared in the Caucus Room of the Russell Senate Office Building on Tuesday, September 13th for questioning by the Judiciary Committee. It was no contest. He displayed a logical mind, an encyclopedic memory, an astounding grasp of the law, and a surprising capacity for patience with Democrat senators who sought, but failed miserably, to elicit from him something damaging to his chances. The Committee — three Democrats siding with the Republican majority — voted to send his nomination to the Senate floor.
ROBERTS CONFIRMATION
By Monday, September 26, when Senatorial debate on his nomination began, two thirds of the 100 senators — Republicans and Democrats — had already announced their support for Roberts to succeed Rehnquist as Chief Justice. Although my deadline for this article falls prior to the Senate vote on Thursday, September 29th, I’ll venture that, barring a lightning strike, Roberts will be confirmed.
But even with Roberts’s confirmation, the war over constitutional interpretation will not be won and Roe v. Wade will not be overturned. For those to happen, the votes of five justices are essential. Thus Mr. Bush’s next appointment is crucial.
PRESIDENTIAL SHORT LIST
President Bush will move speedily to make his second appointment. Who’s on the “short list” this time? Edith Hollen Jones, Edith Brown Clement, and Emilio Garza, judges on the U.S. Court of Appeals for the 5th Circuit in New Orleans, for starters. Judge Garza was considered in 1991 for the seat that went to Clarence Thomas. Samuel Alito, Michael Luttig, and Michael McConnell, all federal appeals court judges, are also there.
Non-judges include Attorney General Roberto Gonzales, Senators Lindsey Graham (R-SC), Michael Crapo (R-ID), Kay Bailey Hutchinson (R-TX), Judd Gregg (R-NH), Mel Martinez (R-FL), John Cornryn (R-TX), and Mike DeWine (R-OH). Of these, Senator Martinez appears the best qualified. And he’s pro-life.
FUTURE VACANCIES
“. . . Mr. Bush is the first president to have two high court vacancies at the same time since President Nixon faced such a situation in 1971,” wrote Joseph Curl (Washington Times, 9/5/05). Previously in this space, I stated: “George Bush, with two years remaining in his term, may . . . fill as many as four slots; Stevens is 85 and Ruth Bader Ginsberg is 82.”
Will that happen? Will the battle over constitutional interpretation be settled for the next thirty years? Will Roe be overturned, permitting states to deal with the problem of abortion? Who says the political realm isn’t interesting?
Tony Sacco is the author of The China Connection and Little Sister Lost. A private investigator specializing in locating missing persons and asset recovery, Tony holds a B.S. degree in Political Science from Loyola College and a Juris Doctor degree from the University of Maryland. His columns appear in the Wyoming Catholic Register and WREN Magazine, respectively.