New Supreme Court Nomination Expected Soon

President Bush could name a new Supreme Court justice to replace Sandra Day O'Connor as early as Monday. The high court opens a new term Monday with a new justice in the center seat: John Roberts is presiding over a court in transition, dealing with tumultuous cases.

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RENEE MONTAGNE, host:

President Bush has chosen White House counsel Harriet Miers to replace Justice Sandra Day O'Connor on the Supreme Court.

Ms. HARRIET MIERS (Counsel, White House): If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the courts meet their obligations to strictly apply the laws in the Constitution.

MONTAGNE: Harriet Miers speaking this morning at the White House.

The announcement of her nomination to the Supreme Court comes on the day the court opens a new term with one justice poised to leave and a new justice in the center seat. John Roberts, the 17th chief justice of the United States, is presiding over a court in transition, dealing with tumultuous cases. NPR legal affairs correspondent Nina Totenberg has this report.

NINA TOTENBERG reporting:

Sitting next to Roberts on the bench today will be Justice Sandra Day O'Connor. She's at work at least until late November and probably December and it means that O'Connor is likely to hear arguments in more than 30 cases and to vote in those cases. Once she retires, though, her previously cast votes don't count in cases not yet announced by the court. So how will the court handle that? As Georgetown law Professor Viet Dinh puts it...

Professor VIET DINH (Georgetown University): Obviously we are in a little bit of a litigation pickle.

TOTENBERG: In fact, though, this is not a new problem. In 1988, for example, Justice Anthony Kennedy did not arrive at the court until late February. The court had operated for six months with eight justices, and in most instances, when they were equally divided, the justices simply listed the cases for re-argument before a full court later so that Kennedy could cast the deciding vote. Similarly, when Justice Harry Blackman arrived in 1970, the court had been operating for a full year with only eight justices and there were 17 deadlocked cases from the previous term that were re-argued for the second and some for the third time.

Right now the court has nine justices and the assumption is that in cases where O'Connor is the deciding vote, the court will hold the case and order it re-argued. In cases where her vote is not decisive, however--and most would fall into that category--the court can proceed as it normally does. If O'Connor is still there when the decision is released, her vote will be included. If she's not, her vote will not be included and the case will be decided by a majority of eight.

As to the assignment of written opinions, O'Connor's a famously fast writer, so the assumption is that she will be assigned to write decisions in a couple of early cases that can be disposed of quickly. Much of the focus in the immediate future, though, will be on the new chief justice, John Roberts. On Friday, the newly sworn chief arrived at the court to begin work. He's hired all six members of the late chief justice's staff and brought two law clerks and a secretary of his own from the appeals court. He will need all the extra help as he tries to fill the void left by the forceful Chief Justice Rehnquist, who reigned for 19 years, much admired by his colleagues. As Georgetown law Professor Richard Lazarus put it...

Professor RICHARD LAZARUS (Georgetown University): He ran that place. They had a lot of respect for him. This is a completely different dynamic that a Chief Justice Roberts will be walking into.

TOTENBERG: Lazarus, who's been Roberts' close friend for 25 years, notes that if Roberts had been confirmed as an associate justice, he would have had time to quietly adjust to his new role, but as chief, there is no place to hide. Yes, the chief justice is only one of nine votes, but he has many duties as head of the third branch of government and even within the court. Just for starters, he presides at the court's weekly conferences where the justices meet with no one else present. He summarizes the issues in each case before the other justices speak and vote. He assigns who will write decisions when he's in the majority, and he's responsible for making up the initial list of which cases among the hundreds that come in each week is to be discussed as a possible case for hearing.

When he sits on the court today and in the conference at the end of this week, he will, at age 50, be the youngest justice and everyone else there will have been there already for one, two or three decades. Professor Lazarus.

Prof. LAZARUS: Some of them a very long time. Many of them wanted to be chief justice under one president or another and they may have tremendous respect for him a lot, but, boy, they're going to be interested in influencing him as the chief in the next years. So there's going to be a lot of jockeying positions, dramatic change in the internal dynamics of the court.

TOTENBERG: Viet Dinh thinks that Roberts will be an engaged and engaging chief who may have influence beyond his role of chief.

Prof. DINH: I think where Chief Justice Roberts will have a significant role is in his, you know, vaunted interpersonal skills in dealing with members of the court whom he knows intimately as an advocate and knows the fault lines of their jurisprudence and also their personalities.

TOTENBERG: And Lazarus says his old friend will likely mark time before he seeks any major change in either the court's doctrine or its practices.

Prof. LAZARUS: He's got a different time horizon than a lot of the rest of them. He's coming in at age 50. He's thinking about the court over a long period of time. A lot of them are thinking about, you know, `What can we do right now?' I think he's going to be more patient.

TOTENBERG: Still, we will get some early indicators of where the new chief will be ideologically. Later this week, the court will hear arguments in a case from Oregon, the only state in the country that has legalized doctor-assisted suicide for terminally ill patients. The Bush administration will argue that the state is not free to authorize the lethal use of narcotics under the administration's interpretation of the federal drug law.

Then next month, the court will hear argument in a case testing whether Congress exceeded its authority when it required public institutions--in this case, state prisons--to make reasonable accommodations for disabled prisoners. Also to be argued next month is the challenge to the so-called Solomon Amendment, which cuts off all federal aid to universities if they don't allow the military to recruit lawyers on campus. The law was passed after many law schools required the military to recruit off campus because the school viewed the military's `don't ask, don't tell' rule as violating the school's anti-discrimination policy.

Also this term, there are important cases testing the constitutionality of both federal and state campaign finance laws. And in just a few short weeks, there's an abortion case testing a New Hampshire parental notification law that has no provision for going ahead with an abortion without parental notification when a minor's health is at serious risk. Justice O'Connor has consistently been the deciding vote in declaring that an abortion regulation that doesn't provide an exception to prevent a woman's health is an unconstitutional burden on a woman's right to choose. Former solicitor general Ted Olsen.

Mr. TED OLSEN (Former Solicitor General): It will be interesting to see the extent to which the undue burden standard, which is a creation of Justice O'Connor, survives her departure from the court in this very, very contentious area.

TOTENBERG: Waiting in the wings are other abortion cases, testing the constitutionality of the federal so-called partial-birth abortion law, a law that also has no health exception. And there are important national security cases testing the constitutionality of the tribunals at Guantanamo Bay and the imprisonment without trial of an American citizen arrested on US shores. In short, it will be a fascinating and blockbuster term.

Nina Totenberg, NPR News, Washington.

MONTAGNE: As we've been reporting this morning, President Bush has chosen a lawyer who has never been a judge to succeed Justice O'Connor. She is White House counsel Harriet Miers, a close associate of the president since his days as governor of Texas.

This is NPR News.

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