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September 6, 2005
Roberts Promotion Gets Media Results

The largely-unexpected move to have John Roberts replace William Rehnquist rather than Sandra Day O'Connor raised a few eyebrows this weekend. George Bush had an opportunity to elevate one of the sitting justices on the Supreme Court, and the debate seemed to focus on whether he would pick Antonin Scalia or get really bold and choose Clarence Thomas as the first African-American Chief Justice. Instead of leaving that pot to boil, Bush acted quickly to shift Roberts to Rehnquist's slot, ending the speculation and reducing the number of confirmation hearings required to return the court to normalcy.

For such a solid and untouchable nominee, Roberts has undergone considerable and mostly hysterical scrutiny in the media. His hearings promised to provide plenty of fireworks before his elevation to Chief Justice, and some wondered if the move wouldn't allow moderate Democrats an opportunity to withdraw their previously-stated support for his confirmation. However, judging by the early reaction of the media, Bush appears to have once again demonstrated his political infighting genius and outboxed the Boxer corps.

The New York Times, for instance, has shifted gears to cover how John Roberts' papers and track record will influence him to follow in Rehnquist's footsteps as Chief Justice -- and endorses the notion:

As a Supreme Court law clerk to William H. Rehnquist decades ago, John G. Roberts Jr. learned how not to be chief justice. Now that President Bush has chosen him for the position, he will, if the Senate confirms him, have the rare chance to put those lessons into practice. ...

Later, when Mr. Roberts was working in the White House counsel's office, memorandums from that period show, he devoted considerable attention to knocking down various proposals from Chief Justice Burger, including one for a new tribunal to ease the Supreme Court's workload.

In a 1983 memorandum, to Fred F. Fielding, the White House counsel, he said a Burger request for authority to name an administrative "chancellor" for the federal courts was "the silliest" of various proposals and added, in a reference to the Anglophilia for which the chief justice was well known around the court, "The bill does not specify whether the Chancellor will wear a powdered wig."

Justice Rehnquist, upon becoming chief justice in 1986, promptly made changes that clearly reflected his own disapproval of how Warren Burger had run the court. For example, he converted the job of administrative assistant to the chief justice into a two-year appointment rather than a permanent position, to avoid the empire-building that had become evident during the Burger years.

The very different Rehnquist management style, straightforward and unadorned, was much appreciated within the court, as reflected in the statements the associate justices issued after Chief Justice Rehnquist's death on Saturday night. Justice Ruth Bader Ginsburg called him "the fairest, most efficient boss I have ever had."

Up to now, the New York Times has presented a mostly fair and balanced look at the Roberts record, although its editorial board has taken its normally fact-free and hysterical approach to all things Bush on Roberts. On occasion, though, it has pointed out witticisms such as these to question the judicial temperament of Roberts, not to enhance its reputation. Tossing in an approving if indirect quote from the Left's beloved Ginsburg certainly represents a shift in tone. Even the editorial today notes that Roberts as a Rehnquist replacements changes the game somewhat:

Some Democrats have urged that he make his second nomination, for the seat occupied by Sandra Day O'Connor, before the Senate takes up Judge Roberts's nomination. That seems reasonable. Chief Justice William Rehnquist, who died on Saturday, was a very conservative jurist, and from what we know about Judge Roberts, it is clear that President Bush has nominated a very conservative man to take his place. It is also important to know the president's plans for filling the seat held by the more moderate Justice O'Connor.

If the Times seems mollified by the shift of Roberts to the Rehnquist seat, the Washington Post appears absolutely delighted. Their coverage has contrasted with the NYT in its zealous reporting of smear after smear in its "news" reporting on John Roberts. This morning, though, sunshine has dawned on the Post, and Charles Lane finds the positives in the Roberts shift:

Roberts, 50, is not only younger than Scalia, but also mellower, a former law clerk of the easygoing Rehnquist. Roberts became known for his astute political judgments in the Reagan administration and his cordial personal relations with many liberal attorneys during his years as a Supreme Court advocate. In a role in which he will have few means of forging majorities other than persuasion and tact, that could make Roberts an effective force for conservatism on the court. ...

Historians have often labeled different eras at the court for the chief justice who presided at the time. Yet whereas the chief justice runs oral argument and closed-door conferences, he has only one vote and few formal means of control over the court. Rehnquist himself once likened leading the Supreme Court's eight associate justices to controlling "hogs on ice." The court's nominal boss, he said, "may at most persuade or cajole" his independent-minded colleagues.

Thus, the Warren Court's jurisprudence probably owed as much to the thinking and interpersonal skills of Justice William J. Brennan Jr. as it did to the ideas of Chief Justice Earl Warren. Sandra Day O'Connor, an appointee of President Ronald Reagan who often found herself unable to agree with Scalia, was the controlling force of the Rehnquist Court.

Probably the chief justice's principal power is the right to assign the writing of opinions for the court when he is in the majority. Rehnquist was known for the fairness with which he distributed opinions among the associates -- especially in contrast to his predecessor, Warren E. Burger, who often generated ill will by manipulating the process.

Lane goes on to note that Roberts' familiarity with the Court, having argued 39 cases at the bar as well as extensive social contacts with the jurists, will allow for an easy transition to Chief Justice. If Lane appears optimistic, the Post's editorial board seems giddy with delight. They suddenly note the virtues of Roberts and press for a quick confirmation:

If confirmed, Judge John G. Roberts Jr. will bring the same virtues to the job of heading the country's judiciary as he would have brought to the job of associate justice. A highly regarded former appellate lawyer and current appeals court judge, he is a modest, smart lawyer who, unlike some of the president's judicial picks, is generally well regarded across party lines. Mr. Bush deserves credit for acting with dispatch. The Senate should do so as well and, giving a full airing to the issues, should make a point of voting on the nomination before the court reconvenes in October. ...

In one critical respect, however, moving Judge Roberts to the chief's slot may actually reduce his impact on the court's ideological balance. Chief Justice Rehnquist, unlike Justice Sandra Day O'Connor, was not often a swing vote on the court. In replacing him, Judge Roberts will be very unlikely to move the court substantially to the right. He would not have to prove all that surprising to move it to the left on certain issues.

Make no mistake about this. These two papers represent mainstream Democratic thought, either by leading them philosophically or reflecting their current state of mind. Bush has changed the debate and reduced the flame under Roberts to a mild simmer. Partisan hacks like Chuck Schumer and Teddy Kennedy may try to bring it back to a boil, but the rest of the party has decided to conserve their strength for the upcoming Sandra Day O'Connor replacement -- on which more later.

Once again, Bush proves that he understands Washington better than Washington understands him, and that his political skills get underestimated only at the peril of his opponents.

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Posted by Ed Morrissey at September 6, 2005 5:35 AM

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» Promotion from Kevin's Korner
I was going to post some bloviations about who our President might pick to replace Justice Rehnquist and how he might go about it, but he beat me to it. It is nice to see Mr. Bush knows when to take his time and when to move quickly. [Read More]

Tracked on September 6, 2005 8:41 AM

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Tracked on September 6, 2005 10:36 AM

» Rehnquist, Katrina and Marina from scoopstories
I feel required - as a recovering news and politics junkie and your former intrepid reporter - to say something about Chief Justice Rehnquist dying and the nomination of Roberts now as not just justice but chief justice. But I'm [Read More]

Tracked on September 6, 2005 7:30 PM

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