Roberts Nominated for Chief Justice

Melissa Block talks with Douglas Kmiec, professor of constitutional law at Pepperdine University, and with Jeffrey Rosen, associate professor at George Washington University Law School and legal affairs editor at The New Republic, about the death of Chief Justice William Rehnquist and the nomination of Judge John Roberts to succeed him.

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MELISSA BLOCK, host:

This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.

President Bush today picked Judge John Roberts, who was his nominee to succeed Sandra Day O'Connor as associate justice of the Supreme Court, to succeed the late William Rehnquist as chief justice.

President GEORGE W. BUSH: It is fitting that a great chief justice be followed in office by a person who shared his deep reverence for the constitution, his profound respect for the Supreme Court and his complete devotion to the cause of justice.

BLOCK: John Roberts came to Washington 25 years ago as a clerk to then Associate Justice Rehnquist. Because of the shift of his nomination from associate to chief justice, the Senate had decided to postpone Roberts' confirmation hearing. It was supposed to begin tomorrow. Now it will begin on Thursday at the earliest or next week. To talk about the future of the court I'm joined by Jeffrey Rosen and Douglas Kmiec. Jeffrey Rosen, professor at George Washington University Law School, is here in our studio.

Thanks for coming in.

Professor JEFFREY ROSEN (George Washington University Law School): Nice to be here.

BLOCK: And Douglas Kmiec, professor of constitutional law at Pepperdine University, joins us by phone from Malibu, California.

Welcome.

Professor DOUGLAS KMIEC (Pepperdine University): Good afternoon.

BLOCK: Let's talk first about the prospect of Judge Roberts as chief justice. Doug Kmiec, you had expected that the president would elevate someone within the court, say Justice Antonin Scalia, to be chief justice and he didn't do that.

Prof. KMIEC: That's right. The president is always surprising me, but on reflection one can see the lines of his thinking. He has identified John Roberts as someone who takes a restrained view of the judicial role, who decides cases or controversies, who, as he said in his statement this morning, is very much like the late chief justice giving as much deference as possible to the choices of the people through their legislative representative.

The reason I had initially thought, Melissa, that the president would not name John Roberts was just simply because the confirmation process had been so far along on John with respect to his replacement of Sandra O'Connor. And there are some formalities now that have to be observed. The withdrawal of that nomination and the resubmission of a new nomination for chief justice and that, as you reported, has occasioned some delay. And my thought is, is that avoiding that delay is most important, both for the work of the court and to honor the memory of the chief justice who never liked delay, who was known for his efficiency and punctuality.

BLOCK: Jeffrey Rosen, if he is confirmed, what kind of a chief justice would you expect John Roberts to be? How would his influence be felt in the court?

Prof. ROSEN: Well, it really is remarkable how dramatic the role of the judicial temperament can play in success for chief justices. John Marshall, who created the role, was successful because of his ability to bring together colleagues of different points of view. His geniality, his friendliness, the fact that he liked to drink Madeira with his colleagues and that they lived together and talked together really allowed him to reshape the court in his own image. Everything we know about John Roberts suggests that he has an extremely appealing and similarly genial personality. He has a knack for getting along with people on both sides of the ideological spectrum. He doesn't seem to be on an ideological crusade and, therefore, is willing to compromise and that spirit of moderation in the jurisprudential sense really seems to be crucial for success as chief justice. So, therefore, it really makes a lot of sense that he didn't pick someone with a more polarizing personality like Justice Scalia. It's not unusual that Roberts comes from the outside. Most of the chief justices in American history have not been promoted from within the court. And although it's true, as Doug Kmiec suggests, we may have to wait, you know, a few days the choice just make more and more sense politically and jurisprudentially as we think about it.

BLOCK: Doug Kmiec, when you look back at the legacy of William Rehnquist, the Rehnquist court, he had nearly two decades as chief justice of that court, what hallmarks do you see? What's his imprint?

Prof. KMIEC: Well the chief justice was--is best remembered for his rebalancing of federal and state authority and he did that in a number of ways. He placed judicial limits on the scope of the commerce power--some of which are still very much in play and being rethought perhaps by the current court--but, nevertheless, identified that there has to be some way to divide what is national from what is local if we are going to give honor to the design of the constitution.

He was also more accommodating of religious belief. He facilitated the provision of school choice, of school vouchers to parents who would like to use a religious school for the education of their children, for example.

And he was also far more respectful of economic liberty and property rights, authoring opinions in the area of the so-called takings clause which protects property owners from overzealous police power regulation.

In each of these areas he had significant achievement and I think his legacy while fragile, often built on 5-to-4 majorities, is a very significant one.

BLOCK: Jeffrey Rosen, John Roberts would be replacing a deeply conservative judge. Would you expect him to shape the court in a different way, in any sense, than his predecessor did?

Prof. ROSEN: There's every reason to believe he'll look a lot like Chief Justice Rehnquist. They have a similarly pragmatic conservative disposition. They don't believe that original understanding of the constitution is the be-all and end-all. They care about states' rights but not to the degree of reversing the entire New Deal. It strikes me that Roberts, interestingly, may move the court to the left to some degree on federalism issues when compared with Justice O'Connor. O'Connor was actually more conservative than Rehnquist on a lot of the great states' rights questions, on takings clause issues. Rehnquist was more pragmatic. He would take half a loaf rather than an entire loaf. Rehnquist was actually much more willing than O'Connor to uphold laws. He tied Justice Stephen Breyer as the second most deferential judge on the court, surpassed only by Ginsburg. O'Connor, by contrast, was much more activist. So in this respect, if Roberts is in the mold of Rehnquist, he certainly won't move the court to the right and on some issues he might even move to the left.

BLOCK: There is still, of course, the seat being vacated by Sandra Day O'Connor to fill, and we're hearing the same names that were tossed around earlier this summer when she first announced her retirement.

Jeffrey Rosen, any predictions? These are dangerous to make, I know.

Prof. ROSEN: That seems like the silliest thing that one could possibly do, try to actually predict a name and, of course, the politics change daily. The names that are being bandied about by people who are less scrup--that were less cautious than I am seem to be that President Bush will face great pressure to appoint a woman or a minority and, therefore, Alberto Gonzales, the attorney general, or one of the women who had been mentioned before like Edith Brown Clement or Janice Rogers Brown or Edith Jones, but that's as far as I would want to go today.

BLOCK: Douglas Kmiec, very briefly, do you want to go out on a limb here?

Prof. KMIEC: I think Jeffrey has identified some of the most talented people. The one thing, I think, is important is that the two nominations not be seen as a package, that the John Roberts confirmation proceeding go ahead as planned as closely in time as possible and that the president take his time to find someone of great quality as he has with John Roberts for the next vacancy.

BLOCK: Jeffrey Rosen and Douglas Kmiec, thanks very much.

Prof. KMIEC: Good to be with you.

Prof. ROSEN: Thank you.

BLOCK: Jeffrey Rosen is professor at George Washington University Law School and legal affairs editor at The New Republic. Douglas Kmiec is professor of constitutional law at Pepperdine University in Malibu, California.

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