September 05, 2005

A Chief Justice Roberts, The Next Nominee, and the Ideological Balance of the Court

Having correctly predicted on Saturday night that President Bush would nominate John Roberts to be the Chief, I thought I would press my luck and make a few more predictions.

Democrats will not oppose Roberts for Chief. Though there was some talk today among Senate Democrats that the Chief's job is a more important one than an associate justice, it is not more important in ways that matter to Democrats. The Chief's additional duties are administrative and symbolic (putting aside presiding over impeachment trials). He still casts only a single vote on the Court, and his leadership in terms of the Court's direction is going to be more a function of charisma than any formal title. More importantly, exchanging a Rehnquist vote for a Roberts vote won't meaningfully change the balance of power on important questions on the Court. Not only does this give Democrats little reason to fight (the failure to release the SG papers notwithstanding); any alternative nominee is likely to be worse from the Democrats' point of view.

The big battle now shifts to Justice O'Connor's seat. Writing in my own area of election law, I have written about how replacing Justice O'Connor with a Justice Roberts can have profound implications for important election law questions, including the constitutionality of renewed preclearance provisions of the Voting Rights Act (set to expire in 2007 and expected to be renewed by Congress) and the constitutionality of some longstanding campaign finance laws, including many contribution limits and limits on corporate and union expenditures in election campaigns. With Roberts replacing Rehnquist, the balance on those issues will not likely change, meaning the balance of power will fall to the next nominee to the Court---the one who will fill Justice O'Connor's place.

Pressure on the President to Choose a Conservative Minority or Woman. Already there is speculation that President Bush will fill Justice O'Connor's seat with a woman or member of a minority group, especially having nominated a white male to be chief. I suspect that there would be tremendous pressure on him to nominate a very conservative person in this category, such as D.C. Circuit judge Janice Rogers Brown.

If President Bush does nominate Brown, this will be the biggest battle the Senate has seen in decades. Not only election law cases, but the entire set of recent precedents from affirmative action to federalism to possibly even abortion will be on the line. The fundamental nature of the Supreme Court's role will be at stake.

Democrats could filibuster. And Republicans could invoke the "nuclear option," changing the nature of the Senate. The President will have a choice. He could nominate someone like Brown, or someone more likely to preserve the current ideological balance on the Court, perhaps AG Alberto Gonzales. While many Democrats have made noises against Gonzales because of his role in the torture memos, his nomination would be a gift to Democrats---about the best they could expect to get. For this reasons, conservatives are likely to again mount strong pressure against a Gonzales nomination.

The President has a fundamental choice to make, and it will certainly be a difficult one that will mark his most important influence on the direction of the Supreme Court and perhaps the Senate as an institution as well.

Posted by Rick Hasen at September 5, 2005 09:31 AM