Published January 13, 2015
Seizing a historic opportunity to reshape the Supreme Court, President Bush swiftly chose conservative John Roberts (search) as chief justice Monday and weighed how to fill another vacancy that could push the nation's highest court to the right on issues from abortion to affirmative action.
Polished and plainspoken, Roberts had been on a likely track to be confirmed as an associate justice and it appeared Bush turned to him for the top job to avoid an acrimonious fight at a volatile moment. Bush was on the defensive about the administration's sluggish response to Hurricane Katrina (search) and his poll ratings had fallen to their lowest point of his presidency.
"For the past two months members of the United States Senate and the American people have learned about the career and character of Judge Roberts," Bush said. "They like what they see."
Roberts' nomination, just two days after the death of Chief Justice William H. Rehnquist (search), raised fears among Democrats about a rightward shift as Bush fills two openings on the nine-member court. Democrats have been frustrated by Roberts' popularity and said the Senate must take a closer look at his new nomination.
"The stakes are higher and the Senate's advice and consent responsibility is even more important," said Senate Minority Leader Harry Reid (search), D-Nev. Sen. Edward M. Kennedy (search), D-Mass., expressed concerns about the court's balance.
"Replacing two justices at the same time will have an enormous impact on the court and on the lives and liberties of all Americans for decades," said Ralph Neas, president of the liberal advocacy group People for the American Way, which opposes Roberts' nomination.
Senate Majority Leader Bill Frist (search), R-Tenn., said Roberts was "one of the most well qualified candidates to come before the Senate." He said he still expects Roberts to be confirmed before the new court session begins Oct. 3.
Like Rehnquist, Roberts is deeply conservative. He was nominated in July to succeed retiring Justice Sandra Day O'Connor, who angered conservatives with her tie-breaking votes on contentious issues like abortion restrictions, campaign finance limits, discrimination laws, and religion.
The Roberts-for-Rehnquist nomination would not affect the balance, but Bush could force an ideological shift by replacing O'Connor with a reliably conservative vote. O'Connor has offered to remain on the bench until her successor is named, and Bush called her Monday to say he would move quickly to find her replacement as well. He is not expected to name a new O'Connor successor this week.
After turning twice to Roberts, Bush faces increasing pressure to name a woman or a minority. Some conservatives fretted Bush would pick Attorney General Alberto Gonzales whose views on abortion and other issues have raised their suspicions.
"The president promised in two campaigns to nominate justices who will faithfully uphold the text and principles of the Constitution," said Wendy Long, counsel for the conservative Judicial Confirmation Network. "One would expect the president to nominate more exceptional judicial conservatives like Judge Roberts for as many vacancies as occur, whether it is two, three, or more."
But Brad Berenson, a former Bush White House lawyer, said, "My own view is that Judge Gonzales would be a more conservative justice" than O'Connor.
Other possible replacements include federal courts of appeals judges Edith Clement, Edith Hollan Jones and Emilio Garza. Also mentioned are judges J. Michael Luttig, Samuel A. Alito Jr., James Harvie Wilkinson III and Michael McConnell, and former Solicitor General Theodore Olson, lawyer Miguel Estrada and former deputy attorney general Larry Thompson.
No president has nominated two newcomers to the Supreme Court at the same time since Richard Nixon filled a pair of vacancies in 1971.
The change in Roberts' nomination scrambled plans for his confirmation hearings, which had been scheduled to begin Tuesday. Instead, the capital prepared for the ritual of honoring Rehnquist. His body will lie in repose in the Great Hall of the Supreme Court on Tuesday and Wednesday and he will be buried at Arlington National Cemetery (search) following funeral services Wednesday.
Moving swiftly, Bush met with Roberts in the private residence of the White House for about 35 to 40 minutes on Sunday evening, then officially offered him the job at 7:15 a.m. Monday when Roberts arrived at the Oval Office. The president announced the nomination during morning television shows in a live appearance from the Oval Office.
The president praised Roberts as a man of fairness and integrity, a natural leader. He said the Senate was well along in the process of considering Roberts' qualifications and "they know his record and his fidelity to the law. I am confident that the Senate can complete hearings and confirm him as chief justice within a month."
In brief remarks, Roberts said he was "honored and humbled at the confidence that the president has shown in me. And I am very much aware that if I am confirmed I would succeed a man I deeply respect and admire, a man who has been very kind to me for 25 years."
Only 50 years old, Roberts could be a conservative legal force for decades — as was Rehnquist, who served 33 years on the court, 19 of them as its leader.
There are striking similarities between the two men. Both were first in their class in law school, enjoyed reputations for brilliance and were known as good writers. As a young man, Roberts clerked for Rehnquist and the justice was one of many influences in Roberts' life and legal career.
Roberts' conservative views have been illuminated in thousands of documents from his time as a lawyer in the Reagan administration and the first Bush administration and as a federal appeals court judge. Many of those stands put him at odds with O'Connor and in line with Rehnquist.
The papers showed Roberts' support for prayer in public schools and national identification cards and how he fretted over extended death penalty appeals. He advocated broad power for the White House and disparaged state efforts to combat discrimination against women.
Roberts referred in one memo to the "abortion tragedy" and helped write a legal brief that argued for overturning Roe v. Wade, the landmark 1973 case legalizing abortion.
Getting a new chief justice of Bush's choosing in place quickly avoids the scenario of having liberal Justice John Paul Stevens (search) presiding over court sessions, leading private meetings of the justices and thereby influencing court deliberations. As the court's senior justice, Stevens would take over Rehnquist's administrative duties until a new chief is confirmed.