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Mon Sep 5 13:02:23 PDT 2005

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AFTER REHNQUIST
Sep 5th 2005  

William Rehnquist, the chief justice of America's Supreme Court, has
died, and President George Bush has nominated John Roberts to replace
him. Since Mr Roberts had already been picked to replace another
justice on the court, this means that a second high-court seat is now
available. It is an opportunity conservatives have dreamed of, but it
comes as Mr Bush's political capital is at an all-time low

EVEN his ideological opponents agreed that William Rehnquist was an
honest and fair-minded man who ran a tight ship as the top judge on
America's Supreme Court. His death on Saturday September 3rd was, in
the overused phrase, the end of an era. As chief justice for nearly 20
years, the conservative Mr Rehnquist pulled the court slowly but surely
to the right, and power in America firmly away from the federal
government and towards the states. How his legacy is judged is a
question for future historians, but that it is significant is beyond
doubt.

But even as his body lies in state in the Supreme Court building,
thoughts are inevitably turning already to the future. President George
Bush has nominated John Roberts to succeed Mr Rehnquist. Mr Roberts had
already been nominated to an associate judgeship on the court on the
retirement of Sandra Day O'Connor, a conservative who nonetheless
earned a reputation as the swing voter on social matters. Mr Roberts's
confirmation hearings in the Senate had been expected to begin early
this week.

But that was before the latest turmoil. Not only has Hurricane Katrina
shaken America (see article[1]), causing Mr Bush to postpone, among
other things, a visit by China's president. Mr Rehnquist's death means
that there are now two Supreme Court vacancies, and the president's
decision to nominate Mr Roberts as chief justice changes the picture
further still. It was announced on Monday that his confirmation would
be postponed until later this week or early next.

The chief justice has no more weight in voting than his eight
colleagues. But he is the court's chief administrator, and among his
more important duties is assigning opinions for his fellow justices to
write. This is no small power, since the different judges have both
differing politics and styles. The chief's position is important enough
that Mr Rehnquist had to go through a fairly bruising confirmation
hearing in 1986, even though he had already been an associate judge on
the court for 15 years.

So even though Mr Roberts was widely expected to be confirmed as an
associate justice, his nomination to the top spot will make activists
and senators give him yet another close look. So far, they have failed
to come up with anything embarrassing after combing through virtually
everything he has ever written. Moreover, he is a likeable man with a
formidable intellect, and is said to be more devoted to the law in the
abstract than to pushing his personal conservatism.

Conservative he certainly is. He was a clerk to Mr Rehnquist in the
early 1980s, and shows it. The two men shared a fondness for the tenth
amendment to the constitution, and a corresponding wariness of the
"commerce clause". The tenth amendment says that all powers not
explicitly given to the federal government in the constitution are
reserved for the states or "the people". Conservatives consider it the
most widely, and sadly, ignored part of the entire document. In
particular, those who would arrogate powers to Washington have taken
advantage of the clause that allows Congress to regulate "interstate
commerce". This has been the legal basis for federal intervention in
all kinds of matters not obviously related to commerce.

The Rehnquist court has fought back. Mr Rehnquist opposed a federal law
banning guns from a certain radius around public schools, on the ground
that Congress had no constitutional power to do this (guns and schools
having no obvious connection to interstate commerce). Mr Roberts used
the same reasoning to oppose a law protecting a species of toad native
to California. 

Liberals worry that turning the tide against the federal government
will weaken its ability to protect the environment, civil rights,
abortion rights and a host of other causes dear to them. In particular,
they worry about Mr Roberts's stance on ROE V WADE, the 1973 decision
that found a right to "privacy" in the constitution and thereby
guaranteed legal abortion across the country. Mr Roberts has not said
directly whether he would vote to overturn ROE, and probably won't in
his confirmation hearings. But Mr Rehnquist was against ROE already.
Barring surprises, Mr Roberts will take the same stance as his former
boss on this and a host of other issues. The succession is thus
unlikely to change the court much.

Hence all the attention turning to the question of who will replace Ms
O'Connor, the swing vote. She was known for her pragmatic approach to
cases, supporting some forms of affirmative action but not others, and
some shows of public religion but not others. Though conservative, she
was nothing like her colleagues Antonin Scalia and Clarence Thomas, who
bring dogmatic, even radical, conservative arguments to bear on cases.

Who will Mr Bush pick? Having just selected Mr Roberts in July, his
shortlist is still close at hand. There is pressure on him to nominate
someone who is not both white and male--especially in light of the
racial divisions exposed by Hurricane Katrina (most of those too poor
to leave New Orleans were black). Having rejected a "women-only" seat
by replacing Ms O'Connor with Mr Roberts, to conservatives' delight, Mr
Bush might now win points on the other side by choosing either a woman
or a non-white this time. 

There are several possibilities. Edith Clement, who seems to be rather
moderate, was rumoured to be in the running for the nomination Mr
Roberts eventually got. Mr Bush might appoint his close friend, the
attorney-general Alberto Gonzales--but religious conservatives consider
him flaky, particularly on abortion, and would cry foul. Emilio Garza,
currently a federal appeals-court judge, would be a more reliably
conservative Latino. Or Mr Bush could drop a bomb by nominating Janice
Rogers Brown, a black woman, but also one of the most controversial
conservatives on the bench. Opponents see her as an extremist ready to
overturn long-established social-protection legislation--she has
written that Franklin Roosevelt's New Deal "marks the triumph of our
own socialist revolution".

Anyone perceived as an extremist would face the threat of a
filibuster--as few as 40 of the 100 Senate members can prevent a vote
by debating endlessly. The Republicans are five seats short of the 60
needed to overturn such a ruse. In May, the two sides made a deal over
a batch of Mr Bush's lower-court nominees (including Ms Rogers Brown),
saying that the filibuster against judicial nominees could be preserved
in the Senate rules if the minority agreed to use it only under
"extreme" circumstances. But the agreement is fragile and could easily
unravel from either side.

That said, the president's political capital is at an all-time
low--thanks to violence in Iraq, spiralling petrol prices and the
botched response to Katrina--and he may feel this is no time for a big
fight. Caught between falling approval ratings and a conservative base
threatening to revolt, he is likely to find nominating a replacement
for Ms O'Connor a difficult test of his political touch. How he handles
it could set the tone for much of his second term.

-----
[1] http://www.economist.com/displayStory.cfm?story_ID=4366649

See this article with graphics and related items at http://www.economist.com/agenda/displaystory.cfm?story_id=4366298&fsrc=nwl

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