Slate's Jurisprudence: Steps to Confirmation

After the death of Chief Justice William Rehnquist on Saturday, President Bush switched strategies and nominated John Roberts to take the top post, instead of replacing retiring Justice Sandra Day O'Connor. Alex Chadwick speaks with Slate legal analyst Dahlia Lithwick about the court's nomination process.

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ALEX CHADWICK, host:

This is DAY TO DAY. I'm Alex Chadwick.

Coming up, a reporter in Mississippi on Katrina recovery there.

First, this. The body of Chief Justice William Rehnquist is now at the Supreme Court, where it will lie until tomorrow before burial. The pallbearers included the chief's former law clerks, and among them was the man now nominated to succeed him, Judge John Roberts. His confirmation hearings to replace Sandra Day O'Connor were to have started today. They're now delayed until Monday, and reordered after President Bush said he would switch his nominee to the chief's spot. It's not clear there will be nine justices deciding the cases that will be heard at the beginning of the October term. Joining us is Slate contributor and DAY TO DAY legal analyst Dahlia Lithwick.

Dahlia, why couldn't the Senate Judiciary Committee just go ahead with this confirmation hearing?

DAHLIA LITHWICK reporting:

Mostly just a matter of sort of legal formality. You can't just sort of turn a hearing that's supposed to be for an associate justice slot into a hearing for the chief slot, so the president needed to resubmit Roberts' name. The reports are saying that as of next Monday they'll start the chief justice confirmation with John Roberts. Whether or not they can also start up a confirmation hearing for someone to fill O'Connor's slot remains to be seen.

CHADWICK: So how long would a confirmation hearing for a chief justice normally take? The president said, `I want this guy in his seat by the start of this term.' Is that something that is likely to happen?

LITHWICK: It's interesting. I mean, certainly the estimates were that the confirmation hearing would have taken four, five, six days for Roberts for the associate slot, and theoretically it shouldn't take that much longer for the chief slot, but Democrats are already making noises that they're going to redouble their efforts to investigate Roberts' background, to get, for instance, those briefs from the Bush administration that they have not been able to get their hands on. In other words, they're saying, `We're going to really turn this into a fight now, where we were going to sort of let it skate before.' Whether or not that happens is an open question.

CHADWICK: These documents, this is from a time when Judge Roberts was an assistant solicitor general. Does anyone really expect they're going to get handed over?

LITHWICK: No, I don't think so. I think this is chest-thumping. There's a pretty credible argument that they are privileged, and even though the information contained in them is really crucial to understand whether Roberts' views have evolved in the past 25 years, I just don't think they're going to be released.

CHADWICK: Things are complicated, because Sandra Day O'Connor has affirmed that she'll stay on until her replacement is found. But there's this kind of confusion about her hearing arguments in cases that she then would never get to vote on.

LITHWICK: That's precisely right. The sort of sticky wicket on this is that she can hear oral argument, but her name cannot appear on an opinion unless she is sitting on the court when that opinion is handed down, and as you know, as we all know, the real biggies tend to come down in the spring, so presumably her replacement would have her seat by then. So she may be able to hear argument. It's not clear that she can vote, and certainly on the big cases that require a lot of debate and many revisions and drafts being circulated, it's quite clear that we have the possibility of a four-four split, in which case the court is probably going to have to ask that those cases be reargued. So we may have a little bit of sort of empty Kabuki in the fall when some important cases are going to be heard by a justice who cannot vote, ultimately.

CHADWICK: Is it possible for someone who has a case coming before the court, can you ask for a delay? Can you say, `Hey, we're not quite ready,' and figuring that at some point the new justice will be there and things will be more ordered?

LITHWICK: No. The court sets its docket and it determines how it's going to go. I think realistically the idea that an O'Connor successor could get confirmed in three weeks is close to impossible.

CHADWICK: Are you hearing anything about who might be on the short list to replace Justice O'Connor?

LITHWICK: Well, this all comes down to sort of tactics now, Alex. It turns into: Can Bush keep his promise that he's going to put in a hard-line right-winger in the mold of an Antonin Scalia or a Clarence Thomas and satisfy his base, or with his approval ratings absolutely tanking, does he have to put in some kind of consensus candidate, someone more moderate? And that's really going to be the question. If he's looking for someone who looks a little moderate, his attorney general, Alberto Gonzales, is still way up there on the list. If he wants to put someone on the court who's going throw a lot of elbows and reverse old precedents and really make sure the Republican revolution has been won, then I think the names that you heard before--Michael Luttig, Michael McConnell, Emilio Garza, Priscilla Owen--are still very much on the short list.

CHADWICK: Slate legal analyst and DAY TO DAY contributor Dahlia Lithwick.

Dahlia, thank you.

LITHWICK: It's always a pleasure.

CHADWICK: I'm Alex Chadwick. DAY TO DAY returns in just a moment.

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