John Roberts
Chief justice?
September 9, 2005
George Bush’s appointment of John Roberts as Chief Justice was a calculated political move that enables him to limit the number of confirmation battles to two instead of three. If he decided to make Scalia Chief Justice, for instance, then the Senate would have to confirm Scalia as Chief Justice, Scalia’s Associate Justice replacement, and the replacement for Rehnquist. So the nomination of Roberts as Chief Justice was intended, in part, to expedite the process by which President Bush transforms the Supreme Court to a fundamentalist oracle. For Bush, time is of the essence because the Supreme Court resumes proceedings October 3; at which point—in the absence of a Chief Justice nominee—John Paul Stevens would assume the role of Chief Justice.
Understandably perturbed that President Bush would nominate a man with 2 years of judicial experience as to the highest Judicial post in the country, the Democrats have made the reasonable case that, as a Chief Justice nominee, John Roberts must be evaluated at an even higher standard. This argument has predictably angered the right, who make the specious claim that their judicial nominees are the only ones that have ever been subjected to difficult questioning.
MYTH: Bush’s nomination of Roberts as Chief Justice does not raise the bar for his confirmation
The idea that have [sic] set a higher bar because he's going to be nominated for chief justice is silly.
The chief justice aspect of the job is really — sort of a CEO running the machinery of the court and some other institutions. It doesn't affect the votes on the court. He just has one vote, and there's no way he can sway the others, except by the force of his reasoning.
REALITY
It is amusing to hear Rehnquist’s place in the history of U.S. Supreme Court Chief Justices celebrated while the significance of the office is simultaneously downplayed. Robert Bork’s disingenuous attempt to minimize the role of the Chief Justice of the Supreme Court is a response to recent indications on the left that Roberts should submit to even closer scrutiny as a Chief Justice nominee than as an Associate Justice nominee. Conservatives worry that People for the American Way and other judicial watchdogs on the left will use Roberts’ changed nominee status as an excuse to turn up the heat on his confirmation, but they fail to acknowledge that a more intense evaluation is absolutely appropriate.
The argument that a Chief Justice nominee requires heavier scrutiny is actually established in U.S. legal tradition. Increased scrutiny of Roberts’ judicial record is not only appropriate; it is enshrined in U.S. law. For over 200 years, our three branches of government have acknowledged that a Chief Justice nominee must endure more scrutiny than an Associate Justice nominee, which is why they have always required separate nomination and confirmation for the Chief Justice. So, for example, if Bush decided to nominate Scalia as CJ, he would have to endure a Senate confirmation even though he went through the process as an Associate Justice two decades ago. It seems clear that if the late William Rehnquist was forced to undergo a second confirmation when he ascended from Associate to Chief Justice, then John Roberts should not be surprised if the Senate subjects him to a more thorough review.
So, unlike Robert Bork, most legal scholars have always recognized that the position of Chief Justice is one of extra importance. It is a bigger job. If Roberts is confirmed as Chief Justice, he will assume several official responsibilities. The Chief Justice functions as Chairman of the Judicial Conference of the United States, “the principal policy making body concerned with the administration of the United States Courts.” The Chief Justice also serves as the Chairman of the Federal Judicial Center, which functions as the research arm of the judicial system. In addition to these burdensome tasks, of course, the Chief Justice also operates as the Supreme Court’s chief executive officer, and it is in this capacity that a Chief Justice has the most profound impact.
As Chief Justice, John G. Roberts’ most important duty will be to assign the writing of the majority opinions to the Justices of his choosing (when he votes in the majority). This function is actually very important because the majority opinion explains in specific detail the decision of the court. Different justices on the same side of a given case can produce significantly different majority opinions, a fact that is illustrated by the frequent disparities between majority and concurring opinions. This is of tremendous import because it enables the Chief Justice to dictate the tone of, and in some cases, the rationale behind the decision of the court.
Although the Chairmanship positions are important, they are largely separated from ideology. The power to assign opinion writing, however, is subject to ideological prejudices. In fact, the Bush Administration is keenly aware of this subtlety—it’s one of the considerations that led them to nominate Roberts as Chief Justice. According to criminal wingnut journalist Bob Novak, “If a new chief justice were not confirmed by then, the important task of assigning cases would be taken over by the court's senior associate justice: 84-year-old John Paul Stevens, the court's strongest liberal and its member most out of touch philosophically with Bush.” If, on the other hand, John Roberts is confirmed as Chief Justice, that substantial power will be in the hands of someone who is extremely close, philosophically, to Bush. In a speech at Duke University Law School on April 13, 2002, Chief Justice Rehnquist captured both the importance of the Chief Justice’s role and, unwittingly, the cause for liberal concern over the Roberts nomination: “Perhaps the best description of the office is to say that the Chief Justice has placed in his hands some of the tools which will enable him to be primus among the pares but his stature will depend on how he uses them.” It is absolutely reasonable, and obviously necessary for the Senate to subject John Roberts to an even higher standard.
