By Tom Curry National affairs writer
msnbc.com
updated 9/5/2005 8:11:12 PM ET 2005-09-06T00:11:12

Senate Majority Leader Bill Frist said he and Judiciary Committee chairman Sen. Arlen Specter, R-Pa., will announce Wednesday morning when confirmation hearings on chief justice nominee John Roberts will start, but he indicated they would likely begin on Monday.

"Judge Roberts will be confirmed before the start of the Supreme Court's term," Frist predicted confidently. The court convenes on Oct. 3 for its 2005-2006 term.

Frist said he would stick with his previously announced plan to hold a Senate floor vote on the Roberts nomination no later than the last week of September "in order to get him confirmed in time for the start of the Supreme Court's term."

President Bush initially nominated Roberts in July to replace retiring Justice Sandra Day O'Connor, but on Monday morning — two days after the death of Chief Justice William Rehnquist — the president announced that he was nominating Roberts to become chief justice. If confirmed, Roberts, a former Rehnquist law clerk and now a federal appeals court judge, will become the 17th chief justice of the Supreme Court.

Rehnquist, who served the court for 33 years, died of cancer on Saturday and will be buried at Arlington National Cemetery on Wednesday.

As soon as Bush revealed his decision to nominate Roberts to serve as the successor to Rehnquist, his opponents sought to delay the confirmation hearing and keep the public and news media focused on what they see as Bush’s inadequate response to Hurricane Katrina.

“The attention of the Senate should be on the tragedies still unfolding in the aftermath of Hurricane Katrina,” said Ralph Neas, president of People for the American Way, a liberal group which opposed Roberts’s nomination to be associate justice and now opposes his nomination to be chief justice. “With the stakes now even higher for the nation, it would be irresponsible for the Senate Judiciary Committee to conduct confirmation hearings this week.”

Neas said, “There should be no rush” to conduct hearings on the successors to Rehnquist and retiring Associate Justice Sandra Day O’Connor.

Bush has not yet announced a second nominee, and the Senate would be unable to take up that nomination until late September in any event, because it will consider Roberts first and because the members of the Senate Judiciary Committee will likely need to scrutinize thousands of pages of legal opinions and briefs written by whomever the new nominee is.

Democrats explain reasons for delay
Like Neas, Sen. Edward Kennedy, D-Mass., sought to delay any action on Roberts.

“Before the Senate acts on John Roberts's new nomination, we should know even more about his record, and we should know whom the President intends to propose to nominate as a replacement for Sandra Day O'Connor,” Kennedy said.

Kennedy contended that, “in the midst of a national disaster of biblical proportions, it is difficult for the American people to participate fully in the selection of the next chief justice….”

Even some of his most ardent opponents had seen Roberts as a “chief justice-in-waiting” if Rehnquist had lived another year or two.  Neas had predicted two weeks ago that Bush might elevate Roberts from associate justice to chief justice.

Roberts fits the tradition that chief justices usually come from outside the current membership of the high court. Of the 16 men who have served as chief justice, only three were elevated directly from serving as associate justice. The three were Edward Douglass White in 1910, Harlan Fiske Stone in 1941 and William Rehnquist in 1986.

Although Bush has spoken warmly of Associate Justice Antonin Scalia and some of Scalia's admirers in Washington hoped Bush would name him to be chief justice, Scalia's age — he is 69 — was a major disability.

With Roberts, Bush is seeking to have a trusted conservative at the court's helm for 30 or 35 years.

In a press conference Monday, Senate Democratic Leader Harry Reid, D-Nev., made the obvious but important point that some observers might have overlooked in the previous 48 hours of drama and speculation: "A critical part of the Roberts vote count will be how he performs at the hearings."

Will hurricane sway votes?
One wild card was whether the political reaction to Hurricane Katrina will cause Democratic senators who would otherwise have voted for Roberts to vote against him — or to support a filibuster to block any vote on his nomination.

Will it now be politically impossible for some Democratic senators to be seen as supporting President Bush? Will they feel compelled to cast a protest vote against Roberts?

One key indicator: Sen. Mary Landrieu, D-La., who in recent weeks, prior to Katrina, had indicated she was leaning toward supporting Roberts.

Since Saturday, Landrieu has been scathingly critical of the Bush administration response to the hurricane.

Washington University law professor Lee Epstein, co-author of Advice and Consent: The Politics of Judicial Appointments, said Monday that “presidents’ popularity ratings aren’t the key factor here. A president with high ratings doesn’t always get his nominees confirmed and a president with low numbers doesn’t always fail to get his nominees confirmed. President Nixon was at the height of his popularity when the Senate rejected two of his nominees (Clement Haynesworth and Harold Carswell in 1971) and Lyndon Johnson’s approval rating was only 39 percent when the Senate confirmed Thurgood Marshall” in 1967.

The political calculation is driven in part by a practical question: Are the standards of confirmation different for a chief justice than for an associate justice? The history of previous confirmation hearings suggests they are not.

Grilling Rehnquist in 1986
Democrats on the Judiciary Committee in 1986 gave an especially intense grilling to Rehnquist when President Reagan sought to elevate him from associate justice to chief justice, not because he was nominated to be chief, but because they accused him of not testifying fully about his role as an Arizona Republican party activist in the 1960s in challenging or, some said harassing, would-be black voters.

They also assailed him for not recusing himself during the high court’s consideration of a 1972 case challenging the Army's domestic surveillance program.

Rehnquist’s “career of relentless opposition to fundamental claims involving issues such as racial justice, equal rights for women, the freedom of speech and the separation of church and state places him outside the mainstream of American constitutional law as an extremist who should not be confirmed as chief justice,” said Kennedy in 1986, before leading a short-lived filibuster to try to stop Rehnquist.

The chief justice has one vote, just as the other eight justices do, he can not overrule them or influence their vote beyond the persuasive power that any justice would have with any of his colleagues.

The chief runs the weekly conference of the justices in which they discuss cases being argued before the court.

When the justices vote on a case, if the chief is in the majority, then he assigns the writing of the majority opinion in the case, assigning it to himself if he chooses to do so. If he is not in the majority, then the senior justice in the majority assigns the writing of the majority opinion.

Key role of chief justice
In an institution once called “nine scorpions in a bottle,” the chief also must maintain collegiality among the justices. A weak or hesitant chief often leads to a fractious and dysfunctional court.

Roberts’s former co-workers, such as Robert’s former law partner at the Washington firm of Hogan & Hartson, Patricia Brannan, a self-described liberal Democrat, say he has the willingness to listen and the “emotional intelligence” that any chief justice needs to manage eight supreme judicial egos.

From his courtroom demeanor, Roberts, at age 50, appears to be an older person's ideal concept of what a younger person should be: conscientious, self-effacing, willing to help others, and a careful listener.

If confirmed, he would be in the challenging position of a younger man managing sometimes cantankerous much older colleagues, some of whom are old enough to be Roberts's father or mother.

Justice John Paul Stevens is 85, for example, and Justice Ruth Bader Ginsburg is 72.

Epstein said the strong likelihood is that Roberts will win confirmation. “Barring some major scandal or some bizarre incident he should be in place by the first Monday in October,” when the court begins its 2005-2006 term.

Potential replacements for O'Connor
Bush’s decision to nominate Roberts as chief justice allows him to nominate to the spot being vacated by O’Connor either a woman or a member of an ethnic minority, perhaps former Deputy Attorney General Larry Thompson, who is now general counsel at PepsiCo; Harvard Law Professor Mary Ann Glendon; or former Assistant Attorney General Viet Dinh, a Vietnamese refugee who became a top Washington lawyer and Georgetown University law professor.

“The visual of appointing two, white, 50-year old men – compared to what we’re seeing in New Orleans now – would be politically tough for Bush,” said Epstein. “This may put more pressure on the administration to make a diversity appointment.”

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