Nomination of Justices to succeed Justices O'Connor & Rehnquist

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Overview:

On 2005-JUL-19, President Bush nominated John G. Roberts, "a rigid conservative" as his selection to replace Justice O'Connor who announced her retirement from the U.S. Supreme Court. He was a U.S. Appeals Court judge in the District of Columbia with "a deep Republican pedigree" who has been under fire for his views against abortion access long before he was nominated to the Supreme Court. President Bush referred to Judge Roberts as one of the great legal minds of his generation. He said: "John Roberts has devoted his entire professional life to the cause of justice. He is a man of extraordinary accomplishments. He has a good heart." ₈

Upon the death of Chief Justice Rehnquist in early 2005-SEP, the President selected Judge Roberts to be his nominee to that position. That, in effect, left Justice O'Connor's position open. She decided to delay her exit from the Supreme Court until after her replacement is approved by the Senate.

The announcement nominating Judge Roberts on 2005-JUL-19 PM:

The following is a transcript of the televised announcement:

GEORGE W. BUSH: Good evening. One of the most consequential decisions a president makes is his appointment of a justice to the Supreme Court.

When a president chooses a justice, he's placing in human hands the authority and majesty of the law. The decisions of the Supreme Court affect the life of every American. And so a nominee to that court must be a person of superb credentials and the highest integrity. A person who will faithfully apply the Constitution and keep our founding promise of equal justice under law. I have found such a person in Judge John Roberts.

And tonight I'm honored to announce that I am nominating him to serve as associate justice of the Supreme Court. John Roberts currently serves on one of the most influential courts in the nation, the United States Court of Appeals for the District of Columbia Circuit.

Before he was a respected judge he was known as one of the most distinguished and talented attorneys in America. John Roberts has devoted his entire professional life to the cause of justice, and is widely admired for his intellect, his sound judgment and personal decency.

Judge Roberts was born in Buffalo and grew up in Indiana. In high school he captained his football team. And he worked summers in a steel mill to help pay his way through college. He's an honors graduate of both Harvard College and Harvard Law School. In his career he has served as a law clerk to Justice William Rehnquist, as an associate counsel to President Ronald Reagan and as the principal deputy solicitor general in the Department of Justice.

In public service and in private practice he has argued 39 cases before the Supreme Court and earned a reputation as one of the best legal minds of his generation. Judge Roberts has earned the respect of people from both political parties.

After he was nominated for the court of appeals in 2001, a bipartisan group of more than 150 lawyers sent a letter to the Senate Judiciary Committee. They wrote: 'Although as individuals we reflect a wide spectrum of political party affiliation and ideology, we are united in our belief that John Roberts will be an outstanding federal court appeals judge and should be confirmed by the United States Senate.'

The signers of this letter included a former counsel to a Republican president, a former counsel to two Democratic presidents and former high-ranking Justice Department officials of both parties.

My decision to nominate Judge Roberts to the Supreme Court came after a thorough and deliberative process. My staff and I consulted with more than 70 members of the United States Senate. I received good advice from both Republicans and Democrats. I appreciate the care they took. I'm grateful for their advice.

I reviewed the credentials of many well qualified men and women. I met personally with a number of potential nominees. In my meetings with Judge Roberts I have been deeply impressed. He's a man of extraordinary accomplishment and ability. He has a good heart. He has the qualities Americans expect in a judge, experience, wisdom, fairness and civility.

He has profound respect for the rule of law and for the liberties guaranteed to every citizen. He will strictly apply the Constitution and laws not legislate from the bench. He's also a man of character who loves his country and his family. I'm pleased that his wife, Jane, and his two beautiful children, Jack and Josie, could be with us tonight.

Judge Roberts has served his fellow citizens well. And he is prepared for even greater service. Under the Constitution, Judge Roberts now goes before the United States Senate for confirmation. I've recently spoken with leaders, Senator Frist and Senator Reid, and with senior members of the judiciary committee, Chairman Specter and Senator Leahy. These senators share my goal of a dignified confirmation process that is conducted with fairness and civility.

The appointments of the two most recent justices to the Supreme Court proved that this confirmation can be done in a timely manner. So I have full confidence that the Senate will rise to the occasion and act promptly on this nomination. It is important that the newest justice be on the bench when the Supreme Court reconvenes in October.

I believe that Democrats and Republicans alike will see the strong qualifications of this fine judge. As they did when they confirmed him by unanimous consent to the judicial seat he now holds.

I look forward to the Senate voting to confirm Judge John Roberts as the 109th justice of the Supreme Court of the United States.

Judge Roberts, thank you for agreeing to serve, and congratulations.

JUDGE JOHN ROBERTS: Thank you, Mr. President. Thank you. Thank you very much. It is both an honor and very humbling to be nominated to serve on the Supreme Court.

Before I became a judge my law practice consisted largely of arguing cases before the court. That experience left me with a profound appreciation for the role of the court in our constitutional democracy, and a deep regard for the court as an institution.

I always got a lump in my throat whenever I walked up those marble steps to argue a case before the court. And I don't think it was just from the nerves.

I am very grateful for the confidence the president has shown in nominating me. And I look forward to the next step in the process before the United States Senate.

It's also appropriate for me to acknowledge that I would not be standing here today if it were not for the sacrifice and help of my parents, Jack and Rosemary Roberts, my three sisters, Cathy, Peggy and Barbara, and, of course, my wife, Jane. And I also want to acknowledge my children, my daughter, Josie, my son, Jack, who remind me every day why it's so important for us to work to preserve the institutions of our democracy.

Thank you again very much. ₉

Some possible factors involved in Judge Roberts' nomination:

	As of mid-2005, he is 50 years of age. If his nomination is confirmed by the Senate, he could influence the court to produce strict constructionist rulings for three decades in the future.
	He co-wrote a brief for President H.W. Bush saying that Roe v. Wade -- the Supreme Court decision that legalized early abortions -- should be overturned because it has no basis in the U.S. Constitution.
	His most recent decision involved overruling a lower court decision concerning prisoners at Guantanamo Bay, Cuba. The lower court had determined that military commissions violated the U.S. Constitution, international law and American military law, and that trials must not be resumed.
	In the year 2000, he was a member of the law firm that worked on behalf of President Bush in the disputed presidential election.
	He is male; this would halve the number of female justices on the Supreme Court, and make the court less representative of the general American population.

Past predictions of President Bush's nominee:

There were months of active speculation about the nominee that President Bush would select. For years, Bush had said repeatedly that he admired Justices Antonin Scalia and Clarence Thomas, generally regarded as the two most conservative, strict constructionist justices on the Supreme Court. He has said that he wants a judge who will "strictly interpret the Constitution" and "not use the bench to write social policy" and who is a "strict constructionist." He has referred to the stance that his nominee should take on specific matters:

	She/he should be in favor of continuing the "under God" phrase in the Pledge of Allegiance.
	She/he should be against extending the definition of marriage to include same-sex couples.

Age is probably a major factor in the selection of a new justice. A nominee aged 50 or under could influence the decisions of the court for three decades into the future.

Sex may also be a major consideration. Sandra O'Conner was the first woman to serve on the Supreme Court. But the names who were the subject of speculation in the media are almost all males. For example, Tom Curry of MSNBC lists three widely discussed names

	Judge Michael McConnell, 50, on the Tenth Circuit Court of Appeals since 2002.
	Judge J. Michael Luttig, 50, on the Fourth Circuit Court of Appeals since 1991.
	Judge John Roberts, 50, the actual nominee. He has been on the Court of Appeals for the District of Columbia Circuit since 2003. 1

Attorney General Alberto Gonzales was also named as a likely candidate. He is a close friend of President Bush, who appointed him to the Texas Supreme Court. But he has alienated some conservatives who believe that he is not sufficiently opposed to affirmative action for racial minorities and women's access to abortion. He has alienated some liberals because of his attitude towards elementary human rights. He was the person who wrote a memo justifying the abandoning of U.S. and international treaties concerning the torture and mistreatment of prisoners; some liberals feel that this lead to abuses at the Abu Ghraib prison and in secret CIA torture facilities.

C. Boyden Gray, head of the Committee for Justice, a conservative group, said that there are no guarantees that a justice will continue to behave as he or she has in the past. He cites the case of Justice David Souter, who was appointed by the first President Bush who was thought to be a conservative, but turned out to be one of the more liberal members of the court. On the Fox News Sunday TV program, Gray said: "Judges are independent. The judiciary is independent. That's the way it should be. And there's no guarantee." ₂

President Bush had indicated that he will not announce his nominee until the end of 2005-JUL at the earliest. This is to allow the President to interview the various candidates. There was speculation that he might delay his announcement further, to allow time to consider a possible replacement for Chief Justice Rehnquist as well. ₃ However, President Bush decided to announce his selection early, perhaps to give the Senate time to confirm him in advance of the October sitting of the Court.

Comment on the nomination and confirmation process of Judge Roberts by Leon Panetta:

Leon Panetta is a former congressperson, director of the Office of Management and Budget and White House chief of staff in the Clinton administration. He currently co-directs the Leon and Sylvia Panetta Institute for Public Policy, in Seaside, CA. He wrote an opinion piece in the Monterey Herald on 2005-JUL-10, nine days before the Roberts nomination was announced. Panetta suggests that if the president does not nominate a person to replace Sandra Day O'Connor who is also a moderate and who would provide a swing vote between the conservative and liberal factions on the court,  the internal religious, philosophical and political divisions within the U.S. could further degenerate. He concluded his opinion piece with the following:

"...it is no secret that this country is increasingly divided between the red and the blue states, between evangelicals and secularists, between Democrats and Republicans, between conservatives and liberals."

"The current vacancy on the Supreme Court is being viewed by groups on the right and left as an opportunity to further divide the nation. There is the real prospect, depending on whom the president nominates, that there could be a deeply partisan war that could lead to the so-called 'nuclear option' eliminating the filibuster and bringing the business of the U.S. Senate to a virtual halt."

"This is yet another opportunity for the president to exercise the kind of public leadership that Churchill spoke of [in 1942 during the dark days of World War II]. It is a unique moment when the president, through the quality of his nominee, could unite rather than divide the Senate and the nation. Neither party should expect a nominee who will rubber-stamp their ideology. The president owes the nation a nominee with integrity, a distinguished judicial reputation, a keen legal mind and an abiding respect for the Constitution. The Senate owes the nation a dignified nomination process." ₄

"Justice Sunday II: God Save This Honorable Court:"

The Family Research Council (FRC), a Fundamentalist Christian advocacy group, organized a satellite, radio and internet broadcast from the Two Rivers Baptist Church in Nashville, TN, to conservative Christian churches throughout the U.S. The theme was to promote confirmation of Judge Roberts as a strict constructionist replacement for Sandra Day O'Connor. FRC president, Tony Perkins, said: "All the issues we care about go back to the United States Supreme Court. Many of the court's decisions on major issues like partial-birth abortion, finding a constitutional 'right' for sodomy, and the Ten Commandments, were decided by 5-to-4 court votes. Sandra Day O'Connor was one of the swing votes, with the majority against us in so many of those issues." ₅

Americans United for Separation of Church and State has criticized the event. Before Roberts' nomination, their executive director, Rev. Barry W. Lynn, said: "Tony Perkins and the FRC need to take a tip from Hollywood. Movie makers know that when the original stinks, there's no point to cranking out a sequel....Most people I know go to church to connect with God, not hear a rant posing as a sermon from Tony Perkins about which judges God wants to see on the Supreme Court. "I find it ironic that this event is being held by groups that claim to speak in Jesus' name. If Christ were to come back to Earth Aug. 14, my guess is that he would spend the day helping the poor, the needy and the sick. There's one place I know he wouldn't be, and that's 'Justice Sunday II.'" ₆

"Call to Action:"

The Iowa Family Policy Center, a conservative social and religious state advocacy group, organized a "...day of prayer, fasting and intercession for our nation." on 2005-JUL-20. They stated:

"The retirement of Justice Sandra Day O'Connor from the U.S. Supreme Court offers pro-family Americans the most important opportunity we have had in decades to end the Supreme Courts string of anti-Christian decisions....Justice O'Connor was often on the wrong side of 5-4 decisions striking at the heart of family values. The Court's extra-constitutional rulings on the Ten Commandments, abortion, and sodomy laws clearly illustrate the need for a new justice who will interpret the Constitution as it was written and as our founders intended." They have promoted a replacement for Justice O'Connor who is a "strict constructionist." ₇

Senate hearings of Robert's confirmation:

Judge Robert's confirmation hearings began on 2005-SEP-12 before the Justice Committee of the Senate. During the first day of hearings:

	The Democratic members of the committee touched on the importance of determining Judge Robert's opinion about key matters, such as whether the U.S. Constitution contains a privacy clause. This is the principle on which Roe v. Wade (which guarantees women access to early abortions) and Lawrence v. Texas (which prohibits the criminalization of sexual behaviors between adults in privatewhich some people believe are immoral) and other decisions.
	The Republican members of the committee emphasized Judge Roberts impressive intelligence, honesty, background, experience, and ethical standards. They stressed that Roberts should not be forced to answer questions on cases or issues that might come before the Supreme Court in the future. Since he might well serve on the court for over three decades, that would place an enormous range of topics off limits.
	Nobody really discussed the key issue: whether his political philosophy is to treat the U.S. Constitution as an enduring or living document. That is, whether he interprets it in terms of the beliefs of its authors and the values of society at the time it was written, or in terms of today's society.

Judge Roberts spoke for only six minutes. He used a baseball analogy, suggesting that "Justices are like umpires; umpires don't make the rules, they apply them. The role of an umpire and a judge is critical -- they make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.....If I am confirmed, I will confront every case with an open mind," he said. "I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, based on the rule of law, without fear or favor, to the best of my ability.....I will remember that it is my job to call balls and strikes, and not to pitch or bat."

On SEP-13, during the second day of hearings, he surprised many observers by stating that he would be reluctant to overturn long-established Supreme Court precedents like Roe v. Wade. He said: "I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness." ₁₁

On SEP-14, questioning by senators will conclude and testimony will begin from outside supporters and opponents of Judge Robert's confirmation. Debate in the entire Senate is expected to begin on SEP-26. If confirmed, Roberts would be able to join the Supreme Court when it starts its fall session on OCT-01.

The confirmation vote for the late Chief Justice Rehnquist was 65 to 33 in favor -- the smallest margin for any chief justice. Most observers expect a closer vote for Judge Roberts. However, there are few doubts expressed about his eventual confirmation by the Senate. ₁₁

On 2005-SEP-22, the Senate Judiciary Committee voted 13 to 5 to send Judge John Roberts' nomination as chief justice to the full Senate. The Senate began formal debate on Roberts' nomination on SEP-27.

Robert's nomination was approved by the Senate by a vote of 77 to 22. Chief Justice Roberts is now the 17th chief justice of the Supreme Court.

Nomination of Justice O'Connor's replacement:

With Justice O'Connor's resignation, and Chief Justice Rehnquist's death, the remaining seven members of the Supreme Court are almost all male. This contrasts sharply with the Supreme Court of Canada where the majority of Justices, including the Chief Justice, are female. High courts of other western democracies generally have at least a significant minority of female justices. President Bush was under some pressure to nominate a female Justice as Justice O'Connor's replacement in order to keep the gender balance intact. He was also being pressured to nominate the first Hispanic American, perhaps Attorney General Alberto Gonzalas.

There are rumors that President Bush met secretly with Federal Appellate Judge Priscilla Owen, 50, from the Fifth Circuit Court of Appeals in Austin, TX during early 2005-September. Commentators listed other possible nominees including:

	Appellate Judge Edith Clement (5th Circuit, New Orleans, LA)
	Appellate Judge Edith Jones (5th Circuit. Houston, TX)
	Appellate Judge Karen Williams (4th Circuit, Orangeburg, SC)
	Judge Maura Corrigan (Michigan Supreme Court) 10

As the title of a Robert Novak op-ed piece says, "Replacing O'Connor could get ugly." A great deal is at stake.

Dick Polman of Knight Ridder Newspapers wrote on 2005-SEP-27 about America's social and religious conservatives:

"Satisfy us, or else."

"A historic moment has arrived. For decades, they have pined for a conservative takeover of the U.S. Supreme Court. They have tried to mute their concerns about Bush's first nominee, John G. Roberts Jr., a pillar of the legal establishment and therefore not the conservative ideologue of their dreams. But now that Bush is poised - - any day now -- to name his second justice, to replace Sandra Day O'Connor, they seem anxious to collect a crucial IOU from the man who would not have won the White House without their votes."

"To fill the seat that could tip the court rightward, either Bush serves up a diehard conservative nominee who doesn't mince words about opposing abortion and gay rights (in other words, someone more militant than Roberts), or he will surely infuriate many of his own followers -- who will then assail him as a betrayer of the movement, and bash him with the fervor normally exhibited by liberals." ₁₂

President Bush made an unexpected choice. He did not pick his nominees from among the sitting judges and appellate judges. He selected Harriet Miers, an old friend and the White House counsel. He invited her for dinner on 2005-OCT-02. This would not have raised eyebrows, because of her post.

Early on the morning of OCT-03, President Bush announced that he had nominated Harriet Miers to be considered as Associate Justice, to replace Sandra Day O'Connor. He said: "She has devoted her life to the rule of law and the cause of justice. She will be an outstanding addition to the Supreme Court of the United States......She will strictly interpret our Constitution and laws. She will not legislate from the bench."  Ms. Miers responded: "If confirmed, I recognize I will have a tremendous responsibility to keep our judicial system strong and to help insure the court meets their obligations to strictly apply the laws and Constitution." ₁₃

Roberts handles his first case as chief justice:

The Supreme Court heard verbal arguments about Oregon's death with dignity law. As usual, the justices showed signs of their serious division. Being discussed was whether the federal government should be able to override a state law allowing assisted suicide -- a measure twice approved by Oregon voters. According to the Daily Telegraph (London):

"Mr Roberts, 50, who was sworn in last week, dominated proceedings almost from their outset."

"His principal argument was that to make Oregon an exception could undermine the federal regulation of addictive drugs including steroids and painkillers."

"Even as Oregon's senior assistant attorney general, Robert Atkinson, was making his opening remarks, Chief Justice Roberts interrupted him to ask: 'Doesn't that undermine and make enforcement possible?' "

"His performance won high marks from the American Right who saw it as an early sign that the court would be in good hands." ₁₄

Related essays in this section:

	Response to the nomination of Judge Roberts
	Response to the nomination of Harriet Miers

References:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Tom Curry, "Who will be Bush's Supreme Court nominee? Youth and ability to 'connect' with senators and TV audience will weigh in selection," MSNBC, 2005-JUN-09, at: http://msnbc.msn.com/
2. "Bush drops a few clues about candidate," Associated Press, 2005-JUL-05, at:  http://abcnews.go.com
3. Rupert Cornwell, "Bush eyes second supreme Court vacancy," Rominger Legal, 2005-JUL-15, at: http://www.romingerlegal.com/
4. Leon Panetta, "Looking for honesty in our leaders," Monterey Herald.com, 2005-JUL-10, at: http://www.montereyherald.com/
5. Pete Winn, "Justice Sunday II: God Save This Honorable Court," Focus on the Family, 2005-JUL-15, at: http://www.family.org/
6. " 'Justice Sunday II' Another Attempt To Politicize America's Churches, Says Americans United. Group Urges Religious Leaders To Reject Family Research Council's Partisan Overture," Americans United, 2005-JUL-15, at: http://www.au.org/
7. "Call to Action," Iowa Family Policy Center, Email, distributed 2005-JUL-16.
8. Tim Harper, "Battle brews over Bus court nominee," The Toronto Star, 2005-JUL-20, Page A1 (front page.) Online at: http://www.thestar.com/
9. "News FLASH from Rominger Legal," News release, Rominger Legal, Carlisle, PA, 2005-JUL-20.
10. Robert Novak, "Replacing O'Connor could get ugly," Real Clear Politics, 2005-SEP-12, at: http://realclearpolitics.com/
11. Stephen Henderson and James Kuhnhenn, "Abortion a 'settled precedent,' Roberts says," Knight Ridder Newspapers, 2005-SEP-13, at: http://www.realcities.com/
12. Dick Polman, "The conservatives have a message for President Bush," Knight Ridder Newspapers, 2005-SEP-27, at: http://www.romingerlegal.com/
13. Deb Riechmann, "Bush chooses Miers for Supreme Court," Associated Press, at: http://news.yahoo.com/
14. Alec Russell "New US Supreme Court chief defends euthanasia curbs," Daily Telegraph London, 2005-OCT-06, at: http://www.romingerlegal.com/

Copyright ? 2003 to 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-OCT-07
Author: B.A. Robinson