It's been 11 years since a chairman of the Senate Judiciary Committee banged his gavel to open hearings on a president’s nominee to the Supreme Court.
On Monday, Sen. Arlen Specter, R-Pa., convenes several days of hearings on President Bush’s nomination of John Roberts to become the 109th justice on the high court and the 17th chief justice.
Some questions and answers about how the process is expected to unfold:
Q: What has Roberts been doing since Bush nominated him?
A: Roberts has met with Senate leaders, members of the committee and other senators. He also has brushed up on constitutional and legal issues that may come up at the hearing. He has reviewed committee members’ pet issues and his own record as a lawyer and federal appeals court judge.
Roberts was nominated on July 19 to replace retiring Justice Sandra Day O’Connor. After Chief Justice William H. Rehnquist died on Sept. 3, Bush decided that Roberts should lead the court, renominating him on Sept. 5.
Roberts helped carry Rehnquist’s casket into the Supreme Court building for the public viewing last Tuesday and attended Rehnquist’s funeral on Wednesday.
Q: What would be the difference between Roberts serving as chief justice instead of associate justice?
A: As chief justice, Roberts would be the court’s leader and spokesman. He would decide who writes the court’s opinion if he is on the majority side of the decision. He would run the meetings in which the justices discuss and vote on cases, and he would preside over presidential impeachment in the Senate.
The chief justice also presides over the Judicial Conference of the United States, the judiciary’s administrative governing board, and chooses the director and deputy director of the Administrative Office of the U.S. Courts, which supports the federal courts’ daily operations.
Q: How long has it been since the last round of Supreme Court confirmation hearings?
A: Eleven years and two months. Stephen Breyer’s confirmation hearings were July 12-15, 1994. The nomination passed the committee on July 19, and Breyer was confirmed by the Senate by a vote of 87-9 on July 29, 1994.
The last confirmation hearing for a chief justice was for Rehnquist, which ran from July 29-Aug. 1, 1986. Rehnquist’s confirmation vote was 65-33 on Sept. 17, 1986.
Q: Who is on the Senate committee?
A: Ten Republicans and eight Democrats. In addition to Specter, the other GOP senators are Orrin Hatch of Utah, Charles Grassley of Iowa, Jon Kyl of Arizona, Mike DeWine of Ohio, Jeff Sessions of Alabama, Lindsey Graham of South Carolina, John Cornyn of Texas, Sam Brownback of Kansas and Tom Coburn of Oklahoma.
The senior Democrat is Patrick Leahy of Vermont. The other Democrats are Edward M. Kennedy of Massachusetts, Joe Biden of Delaware, Herb Kohl of Wisconsin, Dianne Feinstein of California, Russ Feingold of Wisconsin, Charles Schumer of New York and Dick Durbin of Illinois.
Q: How many of them have questioned a Supreme Court nominee at a confirmation hearing?
A: Nine: Specter, Grassley, Hatch, Leahy, Kohl, Kennedy, Feinstein, Feingold and Biden. Only 44 of the 100 senators have ever voted on a Supreme Court nomination.
Q: Where will the hearings take place?
A: For the first day, it will be in the Caucus Room in the Russell Senate office building. The room has been the site of hearings on the sinking of the Titanic, the Watergate scandal, and Clarence Thomas’ Supreme Court nomination.
The rest of the hearings will be in the nearby Hart Senate office building. It is most famous for having to be evacuated in 2001 because of anthrax powder sent through the mail.
Q: What happens on the first day?
A: Senators will deliver opening statements, scheduled to last as long as 10 minutes each, for up to three hours total. Specter and Leahy will go first, with the parties alternating after that. When they are done, Roberts will be introduced in five-minute speeches by Sens. Evan Bayh, D-Ind., Richard Lugar, R-Ind., and John Warner, R-Va. Roberts then will deliver his opening statement. Questioning begins on the second day.
Q: Will Roberts be under oath?
A: Yes, as it the case with all judicial nominees who speak before the committee.
Q: Who will question Roberts? How long will the questioning last?
A: Every senator on the committee will get an opportunity to question Roberts. He will face about an hour of questioning from each senator: 30 minutes in a first round, 20 minutes in a second round and possibly a third round if senators want it.
Q: Is Roberts required to answer any of the questions?
A: No. Supreme Court nominees did not testify before the committee until 1925; the first was Harlan Fisk Stone of New York. Former Sen. Sherman Minton of Indiana, whom President Truman nominated for the court in 1949, refused to appear. He was confirmed anyway.
Roberts might now answer questions about cases that could come before him on the Supreme Court or about some contentious legal issues.
When advising Sandra Day O’Connor before her confirmation hearing in 1981, Roberts — then a government lawyer — urged her to “avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments.”
Q: What happens when Roberts finishes his testimony?
A: There are 30 slots for witnesses to speak for or against Roberts — 15 chosen by Republicans and 15 chosen by Democrats. The witnesses will be divided into six panels of five witnesses each. The American Bar Association also will testify about the “well qualified” rating it gave Roberts.
Q: What happens after all the testimony?
A: Specter has said he may call a vote on Roberts’ nomination as early as Sept. 20, if the hearings run smoothly. The committee traditionally holds voting sessions on Thursday. That would make Sept. 22 the first chance to vote if the hearings run long. Democrats have not committed to vote on either day.
The committee can vote a nomination out favorably, unfavorably or without recommendation. The last nominee voted out favorably was Breyer. The last nominee voted out unfavorably was Robert Bork, on Oct. 6, 1987. Bork then was rejected by the Senate, 58-42. The last nominee voted out of the committee without recommendation was Clarence Thomas, on Sept. 27, 1991. The Senate confirmed him by a vote of 52-48.
Q: Can a committee vote against Roberts stop the full Senate from voting on his confirmation?
A: No. Supreme Court confirmations are traditionally decided by the full Senate. A “no” vote by the committee would only mean that Roberts’ nomination would advance to the Senate with a negative recommendation or without a recommendation.
Q: When does the Supreme Court begin its next term?
A: The court’s new term begins on Oct. 3. O’Connor has said she will remain on the nine-member court until her replacement is confirmed.