Bush gets chance to put mark on court

Roberts: As hearings for the chief justice nominee begin, speculation focuses on an open swing-vote seat.

September 11, 2005|By Julie Hirschfeld Davis | Julie Hirschfeld Davis,SUN NATIONAL STAFF

WASHINGTON - Ever since George W. Bush identified conservatives Clarence Thomas and Antonin Scalia as his models for the ideal Supreme Court justice, it has been clear that remaking the court would be a defining mission of his presidency.

Bush's efforts to leave a lasting stamp on the judiciary will begin in earnest tomorrow, when the Senate opens hearings on chief justice nominee John G. Roberts Jr.

The confirmation hearings, the first for a Supreme Court justice in 11 years, will be a window into Bush's strategy for reshaping the judicial branch, by filling the bench with young conservatives who will likely decide cases for decades to come. At 50, Roberts would be the youngest chief justice since John Marshall in 1801.

The carefully rehearsed Senate sessions will also be a warm-up for a second, and potentially more consequential, confirmation hearing later this year.

The death of Chief Justice William H. Rehnquist last weekend opened a new round of speculation about whom the president would choose for the other vacancy on the court: to replace retiring Justice Sandra Day O'Connor, who has often been the deciding vote on a closely divided court and has become an influential moderating force over the years.

"The impact of a Roberts court is going to be significantly affected, of course, by who replaces the pivotal vote that Justice O'Connor was there to cast on so many critical issues," said Laurence H. Tribe, a Harvard University law professor. "There is no doubt that Bush plans to put a stamp on the court, but the question of exactly what the stamp will look like, and how deep an imprint it will make, we can't know until the other name is unveiled."

In Roberts, an appeals court judge well regarded across the political spectrum, Bush has found the personification of his strategy for charting the court's future.

A solid conservative who is young enough to steer the court for as long as three decades, Roberts is seen by Bush and his allies as someone who can be trusted to uphold their principles on matters as diverse as abortion and the balance of state and federal powers.

"Everyone understands that Judge Roberts is a real fulfillment of the president's campaign promises to nominate somebody of exceptional qualifications and who shares the president's judicial philosophy," said Wendy E. Long, a counsel at the Judicial Confirmation Network, which supports Bush's conservative nominees.

Conservatives knew when Bush was re-elected last fall that "this was a very historic and rare opportunity to, in essence, correct some of the problems of judicial activism that have been put in place in recent years," Long said.

"It's a very long-term process," she added, "but this is the beginning."

By shifting Roberts to fill the Rehnquist seat, Bush has in essence proposed replacing one conservative chief justice with another, making for what seems, to some, a relatively anticlimactic confirmation process.

But rippling below the surface of the Roberts hearings will be important questions about whom Bush will choose as his next nominee, and how the Senate will treat that person.

Bush swatted away those issues last week, saying he wants the Senate "to focus not on who the next nominee is going to be, but the nominee I got up there now."

"In the meantime," Bush said, "the country can be assured that I'll take a good long look at who should replace Justice O'Connor."

The hearings will be "uneventful with regard to Roberts' confirmation, since that's not really in doubt, but a dress rehearsal for more controversial nominees to come," said David A. Yalof, a University of Connecticut political scientist who specializes in the Supreme Court.

A focal point for the Roberts hearings: how much information senators should have about a nominee before they decide whether to confirm.

During the hearings, "senators will be using the nominee himself as a means to talk to each other," Yalof said, as they try to establish guidelines about what questions are legitimate and what information can be elicited from a nominee.

Bush and his political advisers will be watching with interest too, searching for clues about how aggressive the Senate will be toward future nominees, a potential factor in the president's calculations about filling O'Connor's seat.

Roberts, with a reputation for brilliance and a scant record of opinions after only two years as a judge, has been a difficult target for Democrats and for liberal groups searching for evidence that he wants to roll back previous court rulings on matters such as abortion rights.

That hasn't stopped liberal groups from running TV ads against Roberts, nor has it prevented Democrats from criticizing him, scrutinizing his record and attacking Bush's unwillingness to release additional documents from Roberts' work as a government lawyer.

Some court analysts say Bush will face a stiffer fight if he picks a hard-line conservative to replace O'Connor.

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