Slate's Jurisprudence: The Next High Court Nominee

The Senate Judiciary Committee concluded its questioning of Chief Justice nominee John Roberts last week, and his confirmation seems almost certain. Alex Chadwick talks with Slate contributor Dahlia Lithwick about how Roberts' smooth performance may pave the way for future Supreme Court nominees.

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ALEX CHADWICK, host:

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

The Senate Judiciary Committee is set to vote on Thursday on the nomination of John Roberts to become the next chief justice of the United States. Although some Democrats insist they don't know enough about him, he's widely expected to be confirmed. Still, that leaves one other vacancy on the court, and court watchers are now handicapping how Judge Roberts' performance will affect the next nomination. Joining us to help read the tea leaves is Dahlia Lithwick. She's legal analyst for the online magazine Slate and for DAY TO DAY.

Dahlia, what is the current talk about who President Bush might like to fill Sandra Day O'Connor's place on the court?

DAHLIA LITHWICK (Slate): Well, there's a sense that the political right is really split on this, Alex. One half of it is saying, you know, `Roberts did so well, let's just put another Roberts up and have him sail through.' But certainly, some elements of the right, particularly the far right, are saying that, `Hey, you know, he's not a strong originalist. What happened to the promise of more Antonin Scalias, more Clarence Thomases?' And so they're really pressuring Bush a lot to put a real movement conservative in, someone that they say is just going to promise to overturn Roe v. Wade and then do it.

CHADWICK: What about pressure on the Democrats in the Senate as a result of the Roberts hearings?

LITHWICK: Well, they're also in a little bit of a double bind. They're trying to decide how to vote on Roberts himself and they feel like if they oppose him, reflexively they're going to look like they just caved in to very, very liberal interest groups because Roberts came across looking so good.

On the other hand, they feel if they overwhelmingly support him, they're essentially giving Bush permission to name a real wing-nut the next time, and so they are trying to assess this out in terms of how they're gonna vote. But they're also sort of saying the same thing that some of the Republicans are saying: `Give us another Roberts. You know, he set the bar really high. Give us someone that smart and that eminently confirmable, and we'll confirm him.'

CHADWICK: Well, how can they be considering not voting for him and saying, `Hey, send another guy just like that'? That's a little awkward.

LITHWICK: Nobody says that they have to be consistent here, Alex.

CHADWICK: Sandra Day O'Connor, the first woman appointed to the court; she became a key swing vote in the 5-to-4 opinions. Assuming that Judge Roberts wins confirmation, what is her legacy going to play--what role is that going to play in what Mr. Bush decides to do?

LITHWICK: It makes this the crucial nomination. I mean, the Roberts one was easy; you're replacing a reliable conservative with a reliable conservative. Here, you're replacing a moderate, someone who often voted with the social liberals on the court, with possibly a reliable conservative, which would, in fact, tip the whole balance of the court. O'Connor is also a woman, and so that increases a lot of pressure on the president, particularly in the wake of, I think, Hurricane Katrina, to name either a woman or a minority, possibly a Hispanic justice, to again create a court that looks more like America.

CHADWICK: And the role of Hurricane Katrina in all this has to do with the president's poll numbers, his slipping popularity at this point. He needs to reach out?

LITHWICK: Yeah. I mean, it kind of--there's two ways to read these tea leaves. One school of thought says he absolutely needs to put up someone who is a minority or who is a consensus candidate in order to bring back his numbers. The other version of this is the far right saying all that he has left is his base, so he'd better placate them this time because he didn't placate them with Roberts.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She's legal analyst for the online magazine Slate and a regular contributor here on DAY TO DAY.

Dahlia, thank you.

LITHWICK: Thank you, Alex.

CHADWICK: And there's more coming up on DAY TO DAY from NPR News.

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