Monday, September 05, 2005

Chief Justice Roberts

I wake up to the news that John Roberts has been nominated to be the next Chief Justice. I breathe a sigh of relief.

Here, finally, is my take on how the timing of Rehnquist's death does not threaten the future of the Supreme Court, but (as loathe as I am to say that *anyone's* death is a silver lining) actually provides a silver lining.

As I've written before (in my other blog), I was pretty worried when O'Connor announced her retirement *before* Rehnquist. The thing is, O'Connor's announcement contained the addendum that she would NOT retire UNTIL her replacement were confirmed.

Assuming that Roberts is now considered to be Rehnquist's replacement, not O'Connor's, that means that Democrats opposing an extremist nominee, should Bush appoint one to replace her, have the luxury of time to do so.

If it were Rehnquist's retirement that Bush were rushing to fill before the Court reconvenes in a month, the Democrats wouldn't have the time they need to thoroughly investigate the record of the next Supreme Court nominee and, if necessary, to filibuster.

While Roberts may be opposed to abortion rights, pretty much anyone named by Bush will be. On the other hand, Roberts' record reveals him to be NOT a Scalia-type "originalist" (a misnomer, I think, of Scalia's judicial philosophy, which ignores the original intent of the constitution's drafters to allow for an evolving constitution that reserves unenumerated rights primarily to the individual - see the 9th Amendment + Federalist Papers + many historical accounts of Madison and Hamilton's dialogue on the purpose of the 9th Amendment). He is smart, temperate and well-respected, his judicial philosophy DOES appear to have evolved over the years, and I have a pet theory that he really *could* embrace the Court's recent liberty affirming individual rights cases that protect equal rights of citizens regardless of sexual orientation.

What I'm saying is that, though I am worried about the future of abortion rights, I would be under ANY Supreme Court Justice named by Bush. With Roberts as the presumptive C.J. nominee,

- We will NOT, thank god, have to stomach the thought of "Chief Justice Scalia" and have such a beast running our highest court in the land til he dies;

- We WILL have a 9 member court ready for action when the Supreme Court re-convenes, most likely with O'Connor delaying her retirement til her replacement is confirmed;

- If Bush tries to name an extremist whackjob to replace O'Connor now, the Democrats will have the time they need to defend our Supreme Court against such a nomination, which time they would NOT have had had Rehnquist not (as diplomatically as ever) passed away before O'Connor's retirement was final;

- Even with the threat to abortion rights, we are NOT one vote closer to it being overturned, now that Roberts is replacing Rehnquist, not O'Connor. Rehnquist was as conservative on civil and constitutional rights as you can get (in a different way than Scalia, but actually more consistent in result- almost always ruling against the individual victim in cases involving federal constitutional violations of fundamental rights & equality). Replacing him with another conservative only maintains the status quo (and Roberts is arguably LESS conservative... he served as a consultant to HELP gay rights groups win their first Supreme Court victory, after all). If Roberts - who once wrote that Roe should be overturned (as has Rehnquist) - were to replace O'Connor, on the other hand, who has voted NOT to overturn Roe... THAT would have represented a dramatic shift bringing us one vote closer to Roe's demise.

That's why I'm breathing a sigh of relief.


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