Roberts to Chief

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Make of it what you will: John G. Roberts is now the candidate to become the next chief justice of the Supreme Court. The elevation has two advantages: Roberts' superhuman inoffensiveness means Rehnquist's seat will be filled quickly; and since Sandra Day O'Connor has promised to stay on until her seat is filled, that leaves no gaps for the time being. This second part, however, suggests Team Bush doesn't have a lot of depth at this position. Also, I don't know how eagerly Supreme Court justices seek advancement, nor do I know what's so much better about being Chief Justice rather than being an associate justice, but won't Scalia or one of the other Chief frontrunners be disgruntled at having a judge with two years' experience put over them?

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40 responses to “Roberts to Chief

  1. Bamboozled by Doogie Howser, J.D.

  2. Okay, so I’m not exactly a Supreme Court expert, but why would a government promote the new guy above the people with experience? That’s like getting Micheal Brown to head FEMA. Oh, wait…

  3. It’s actually rather atypical for a Chief Justice to an elevated associate justice. Of the fifteeen Chief Justices since the first (John Jay, who obviously couldn’t be an elevated associate justice), ten were newcomers (Ellsworth, Marshall, Taney, Chase, Waite, Fuller, Taft, Vinson, Warren, and Burger), three were promoted associates (White, Stone, and Rehnquist), and two were ex-associates returning to the Court after a period of absence (Rutledge and Hughes).

  4. I know that newcomers are the norm rather than the exception for Chiefs, but how much judicial experience did the newcomers have in other courts?

    Roberts is clearly a brilliant and hard-working guy with the experience to serve on the Supreme Court (we can debate whether his opinions and philosophy are suitable, yadda yadda, but at least the resume is golden). But there’s a difference between being qualified to serve as a judge on the high court and being qualified to serve as a leader for 8 other judges and chief administrator of the federal courts.

    To compare with my field of expertise, my Ph.D. advisor is a smart guy of about the same age as Roberts with an excellent resume. It would make sense to make him the head of a research institute, but he’d have to spend more time in administration before he could be a university president. (Not that he’d ever want the job, but you get my point.) So making him the head of a major research institute would make sense. Making him the head of a whole university would not.

  5. The Chief Justice’s job involves a lot more work and only a little more money. (They presumably don’t care about money, or they would be making millions in private practice.)

    The only real power is the assignment power: Since the Chief is considered most senior, he gets to assign the writing of opinions in all cases where he is in the majority. This may be of significance insofar as a Chief Justice can assign the opinion to himself or someone else in particular to determine the precise extent of a ruling. (Warren Burger was known to join the majority in some cases where he disagreed so that he could assign the opinion to himself and write it in such a way as to narrow the scope of the ruling. Rehnquist, meanwhile, made such an effort to be fair that he was known to periodically assign himself tedious opinions.)

    One potential burden with being Chief is the presumed responsibility to try to build a consensus where necessary and feasible. I very much doubt that Thomas or Scalia would envy this duty. In many ways, O’Connor would have made the perfect Chief Justice.

  6. I think this has more to do with the make-up of the Senate than anything else. Promoting an associate justice to chief justice would take a vote of the Senate. This would mean Bush would have to get three votes, one of them on Scalia or Thomas which liberals would go balistic on. It’s better politically to just make Roberts chief justice.

    Maybe we will get lucky and he will nominate Janice Brown for the second open position. She sounds like a delightful bad ass.

  7. I should qualify my last post’s comment about the Chief Justice’s work load. Aside from some ceremonial duties and the possible Presidential impeachment trial, the main additional work for the Chief Justice consists of being head of the Judicial Conference of the United States. I don’t know if this involves very many additional hours of work, but it surely must be tedious.

  8. Hmmm, I agree with you about Justice O’Connor. She has demonstrated an evolution in thought over her 24 year tenure in SCOTUS. She has come a long way from being the “fair haired girl” appointed by Reagan and expected to toe the party line for the Republicans. She has made quite a few deciding votes and also some surprising dissents. It is too bad she is retiring.

  9. Hmmm, I agree with you about Justice O’Connor. She has demonstrated an evolution in thought over her 24 year tenure in SCOTUS. She has come a long way from being the “fair haired girl” appointed by Reagan and expected to toe the party line for the Republicans. She has made quite a few deciding votes and also some surprising dissents. It is too bad she is retiring.

  10. Hmmm, I agree with you about Justice O’Connor. She has demonstrated an evolution in thought over her 24 year tenure in SCOTUS. She has come a long way from being the “fair haired girl” appointed by Reagan and expected to toe the party line for the Republicans. She has made quite a few deciding votes and also some surprising dissents. It is too bad she is retiring.

  11. Hmm-

    I obviously don’t know the workload either for being head of the Judicial Conference, but surely it requires an intimate familiarity with the judicial system. I’m sure Roberts will be a good person for the job, but I wonder if they could have easily found another, better person for the job.

    And the point about having 3 Senate votes rather than 2 is a valid one, but I wonder if it could have been addressed by nominating an appellate court judge with a longer tenure in office.

  12. Actually, seems to me that this might be the hook that partisan Dems were looking for. They can say that they don’t think that Roberts has the experience to make a good Chief Justice, and vote him down without looking blatantly partisan.

  13. I don’t mind having Roberts as associate justice, but I’m a little uneasy at the thought of giving him the chief justice position.

    For the record, I predicted that Emilio Garza would get the new position as well as CJ. I was half wrong, but I’m pretty sure he’s got the best chance for the open seat. Here how I rank the others (I’m sorry, but I’m a nut about making lists):

    2. Luttig
    3. E. Clement
    4. McConnell
    5. Alito
    6. Easterbrook
    7. E. Jones
    8. Wilkinson

    Oh, and Janice Brown? Forget about it. The GOP senators were pretty reluctant to let her through: https://www.reason.com/rauch/070705.shtml

  14. Cliff, we heard you the first time. 😉

  15. I’m not a Bush fan, but I’ll give credit where credit is due: This is a brilliant tactical move by Bush.

    Roberts was pretty much a shoo-in for approval, so why not go the full route? He’s essentially a Rehnquist clone anyhow. If Bush tried to elevate any other sitting Justice, an entire field of interest groups would spring to action in opposition. By ‘virtue’ of having no track record as a Justice, Roberts is less vulnerable to attack.

    Getting Roberts in, Bush may finally try to get Janice Brown in. That would be a real dogfight, but one I’d like to see.

  16. panurge-

    I agree, JRB won’t make the cut. She was too much trouble for them the first time around, so I doubt they’ll want to mess around with her twice. Not to mention that on some issues she does in fact sound quite libertarian, so I doubt that she’d make the cut in this era of Big Government “Conservatives”. No telling what she might strike down. (Yes, yes, I know, she’s not libertarian on every issue. She might not pass my purity tests. But I doubt this administration wants to take risks on a Justice with a feisty streak who might get uppity and strike down)

    I don’t know much about Garza, but Edith Clement is from New Orleans. Politicians love to exploit tragedies, so that makes her a rather obvious choice for Associate Justice.

    Shem-

    Yeah, lack of experience might just provide the Dems with the card they need to oppose his confirmation as Chief Justice. Personally, my take is that he’s probably suitable for the job, but there are better people out there and it would make more sense to pick one of them and make Roberts the new Associate. And by better people I don’t mean they have to elevate a current Associate Justice. Somebody with a longer tenure on an appellate court would work just as well.

    So, where we stand is that this pick is reasonable but hardly the best possible one.

  17. Yeah, lack of experience might just provide the Dems with the card they need to oppose his confirmation as Chief Justice

    Yes, but does it provide Democrats with an excuse to filibuster? I don’t think it does. The standard Democratic excuse for filibusters has been that they need “more information” or “more time”.

    Elevation of Thomas or Scalia would have been almost guaranteed to trigger a fillibuster, I think.

  18. He’s essentially a Rehnquist clone anyhow.

    We can certainly hope, but the fact of the mattter is we have no real idea what he is. Any statements about him are little better than guesswork at this point.

    Yes, but does it provide Democrats with an excuse to filibuster?

    If they don’t fillibuster now, when the nation’s attention is on how horrendously the Executive Branch has screwed up (and, regardless of what actually happened, I would hazard a guess that this is what most people are thinking) then they’re too cowardly to ever use it again and the Reps might as well vote it away. Leaving aside concerns as to whether the action is right or wrong and speaking purely in terms of politics, a better time to use it will never come.

  19. I still think it is extremely unlikely that the Dems will filibuster Roberts, even if he may not be seasoned enough for the job.

    Garza is filibuster-proof because the Republicans will be able to play the race card very easily. (There’s also the fact that THEY would be the ones to play the race card, for once, which would no doubt give them a lot of satisfaction.) Luttig can pull sympathy since his father was killed in a carjacking, so ditto for him.

    But Luttig has expressed serious doubts about the administration’s policies on detainees, so that’s a strike against him. Clement is too much of a wild card; she seems to be conservative, but she’s hasn’t worked for the kind of clients Roberts has, and has an even less visible paper trail than him. McConnell is too strong on civil liberties for the administration to be comfortable with him. Alito and Easterbrook are very likely to be filibustered by the Dems, and Jones would be similarly divisive. Wilkinson is 60, an age where he is unlikely to stay in for more than twenty years.

    I may have been wrong about having him as CJ, but put your money on Garza.

  20. Chief justice for practical legal matters is just an associate that gets to assign opinions (and has extra ceremonial duties) as has been noted. As such the qualifications are nearly exactly the same as for associate justices. The only real additional desireable quality would be that the chief be able to build coalitions, which roberts seems to fulfill well. His stint arguing in front of the court (as assistant SG) would actually better prepare him for the role of chief than additional time on an appelate bench.

    I actually think Roberts is a better choice for chief than he is for associate, as I believe that associates should be somewhat further from the mainstream than he is (giving the court a wider breadth of veiwpoint).

  21. I agree with Cliff.

    I agree with Cliff.

    I agree with Cliff.

    😉

    “Garza is filibuster-proof because the Republicans will be able to play the race card very easily. (There’s also the fact that THEY would be the ones to play the race card, for once, which would no doubt give them a lot of satisfaction.)” For once? The Republicans have been trying to play the race card for judicial nominations for years. And they’ve been failing miserably Janis Rogers Brown, anyone? Ted Kennedy hating Catholics? They got laughed off the stage.

    I’ve said it before and I’ll say it again – the Right can’t play a decent race card if their lives depended on it, because successfully deploying the maneuver requires that the one playing be able to convincingly be able to demonstrate genuine, sincere concern about the injustices facing minorities. Neither the currently ascendent faction of Southern white men, nor even the northeastern WASP old guard, has this arrow in their quiver.

    Haven’t you noticed that the strongest position the Republicans have found themselves in is with Rogers, a man so whitebread that he makes Al Gore look like Snoop Dog?

  22. Why appoint Roberts and not one of the associate justices?

    That way there are only two confirmation battles and not three.

    What’s the big deal about being Chief?

    When the Chief justice is in the majority, he or she picks the justice that will write the opinion. That power is important enough that there have been times that the Chief justice has changed his vote to be in the majority to control the writing of the opinion.

    Less importantly, the Chief handles all those appeals that that do not conform to court rules, e.g., Gideon v. Wainwright was appealed by Gideon who wrote a letter to the court in longhand saying he had been wrongly convicted because he didn’t have an attorney appointed to him. It’s the Chief’s clerks (he gets an extra clerk) who read these and decide whether to bring them to the court’s attention.

  23. Although Shem has tried to pre-empt the experience argument by describing it as merely a “hook” on which “partisan democrats” can hand their opposition, I think it’s something worth legitimately thinking about.

    I’ve never raised Robert’s scant, 2 year history on the bench before, because I didn’t think it was relevant. His history in legal offices in the White House seems to me to be just as valuable as actual experience on the bench when it comes to the legal part of the job.

    But the Chief Justice has a special administrative and, what’s the best term, ceremonial/historical role to play as well. It’s this part of the job the job that distinguished Chief from Associates, and I don’t see how being a lawyer, regardless of how elevated a lawyer you might be, gives you the grounding in that end of things.

    I dunno, I’m not a lawyer, maybe I’m completely wrong and there’s nothing to distinguish the requirements to be a good Chief from those needed to be a good Associate, other than the ability to look sharp with gaudy stripes on your sleeves.

  24. Wow. Name-checked by thoreau and joe in the same thread. I feel like some kind of celebrity.;)

    Actually joe, I agree with you. It’s very much worth considering. But, I don’t see why anyone would change their mind purely on the basis of this. Personally, I don’t think the guy has the experience for an associate position either. I like my Justices with a nice long judicial paper trail, mostly because I deeply hate surprises. But, most people don’t agree with me. So, speaking in a purely political sense, this is the best chance people who don’t like Roberts are likely to get to avoid him. I’m sorry if my ascribing pragmatic motives to Democrats ofends you, but my deep and abiding dislike of 95% of Republican office-holders doesn’t change the fact that Democrats are just as likely to play politics when the need suits them.

  25. Fair enough, Shem.

    But there have been a number of Democrats who have been saying nice things about Roberts and driving the MoveOn/Kos faction of the party crazy.

    I could see Harry Reid or some of the Post’s editorial staff supporting Roberts for Associate, but not for Chief.

  26. So, basically, I figure Roberts will do a decent enough job as chief. Nice, smart, experienced guy. Perfectly qualified for Associate, and probably adequate for Chief.

    But I just can’t shake the feeling that there are better candidates for the leadership role. Somebody with longer experience in the federal court system.

    So I’m disappointed here. Bush had the opportunity to identify a really distinguished and experienced judge and elevate this worthy, elder statesman (or stateswoman) to Chief Justice for the next 15-20 years. Instead, he picked a pretty decent guy.

    Maybe Roberts will rise to the occasion and be a truly great Chief Justice. I certainly don’t think he’ll be a bad one. But I can’t shake the feeling that the President is missing an opportunity to appoint the very best person available.

  27. I never thought I’d express concern over the President missing an opportunity to shore up his legacy.

  28. But I can’t shake the feeling that the President is missing an opportunity to appoint the very best person available.

    Why should that be any kind of surprise? He’s had the opportunity to accomplish the kind of goals Republicans have represented, or at least claimed to have represented, for about the last half-century or so (limited government, personal liberty, etc, etc, etc). Given that he has squandered every opportunity to advance a single one of those goals, the surprise isn’t that he’s failed to nominate the very best, it’s that he hasn’t nominated the very worst.

    In context, Roberts is actually a pleasant surprise. He at least appears, in a technical sense anyway, competent to perform the job, and if his politics aren’t everything I might wish for, he isn’t a moon-bat crazy right-wing ideolouge, either.

    Given some of Bush’s previous appointments, be grateful we’ve dodged a bullet!

  29. maybe Bush wanted to pick someone as the chief justice who would personify his presidency: inexperienced and deeply mediocre

  30. thoreau-

    I can’t help but agree with you. Roberts would be fine as associate, but will he be able to exercise the kind of discipline necessary to keep eight people with diverse and often clashing opinions in line? Clearly, he learned from the best- Rehnquist was very fair to his peers and always supervised them with no favoritism- but has he ever really done anything like that himself?

    I think that Wilkinson would have been best for an immediate appointment to chief justice. He’s been on the 4th Circuit Court of Appeals since ’84. Luttig and Garza would be close seconds in terms of experience.

  31. After Bush promised Roberts the associate nomination, Roberts joined a ruling holding that Bush’s military commissions are Constitutional when used against a prisoner at Guantanamo. 2 days later, Bush announced Roberts’ nomination to be an associate justice. If Roberts had any integrity, he wouldn’t have allowed himself to be put in that sort of position.

  32. But I just can’t shake the feeling that there are better candidates for the leadership role. Somebody with longer experience in the federal court system

    If being a better candidate was enough, Bush would be announcing the elevation of Associate Supreme Court Justice Bork to the Chief Justice position. A candidate needs to be enough of a blank slate that the opposition party can’t come up with a flimsy pretext for shooting him down on ideological grounds.

  33. Pig Mannix-

    That is a fair point. Given that Bush’s promises of market economics and fiscal discipline (didn’t he say something about that in 2000? I thought so) led to protectionism, pork, and massive deficits, I guess the fact that Roberts is an experienced guy and mainstream conservative should be taken as a miracle. I’m surprised he didn’t nominate a total loony and open theocrat who graduated at the bottom of his class.

  34. I’ve said it before, and I’ll say it again. What the Supreme Court needs is someone schooled in linguistics. And a really good reader.

    I’m available for the position, if I can telecommute.

    (You’d all like me. I’ve very libertarian.)

  35. thoreau,

    So I’m disappointed here. Bush had the opportunity to identify a really distinguished and experienced judge and elevate this worthy, elder statesman (or stateswoman) to Chief Justice for the next 15-20 years. Instead, he picked a pretty decent guy.”

    Let’s assume that (what I think is the absolute worst possible case) Roberts stumbles a bit as C.J. That will be unfortunate – perhaps some important decisions will be mismanaged – but, he’s really, really smart and seems quite good at getting along with people. He’ll figure it out; along the way he’ll become the elder statesman you wish for. And he’ll be it for 40 years at his age …

  36. Lord Duppy,

    The CJ appoints people to the FISA “district” court (which consists of seven members drawn from the federal judiciary); as Roberts seems like to roll over to executive power (a common trait amongst conservative justices) he might seem a pretty good guy to put into position FISA court judges that are friendly to executive interests when it comes to national insecurity. Of course its already a rubber stamp as it is, and the Court of Appeal has only actually met once I believe.

    Hmmm,

    The Judicial Conference of the United States provides, amongst other things, advisory opinions to the Congress on the legislation that the Congress is interested in. I consider such activities (I’ll leave aside its role in creating the FRCP and the FRE) a blatant violation of the seperation of powers, something the Jay Court did as well when the Washington administration put before it a series of national security questions in the 1790s.

    thoreau,

    Roberts has a lot of experience in the Federal Courts system.

    DB,

    Most libertarians would find Bork’s views to be frightening to say the least.

  37. I don’t see how being a lawyer, regardless of how elevated a lawyer you might be, gives you the grounding in that end of things.

    Agreed

    I’ve said it before and I’ll say it again – the Right can’t play a decent race card if their lives depended on it,

    Agreed

    because successfully deploying the maneuver requires that the one playing be able to convincingly be able to demonstrate genuine, sincere concern about the injustices facing minorities.

    That’s great that they “convinced” them, but what in real world terms have they (democrats, lefties, etc.) actually done for them?

    God bless “sincere concern” !!

    Oh’ wait WELFARE!

    It’s all good now. ))) joe, you’re a pinko 🙂
    ***just kidding***

  38. To head the High Court
    Bush taps Peppermint Patty,
    President’s patsy.

  39. The Washington Post today is wetting its pants over Roberts’ reluctance towards “judicial intervention”.

    That must mean that things are going pretty well.

  40. thoreau,

    Actually Roberts was an incredible choice for Chief Justice. On the current Court, only Thomas is his equal in the skill set necessary for the top job, and Thomas I’m sure has no interest whatsoever in going through another “lynching” for a minor promotion. This is one of the rare cases where practical politics and merit converged to produce an outstanding result.

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