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Bench Memos

NRO’s home for judicial news and analysis.

Why Roberts as Chief Justice?



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Amidst—and with profound respect for—the celebration of Chief Justice Rehnquist’s life and legacy and the mourning of his loss, I would like to reflect briefly on the President’s new, and excellent, nomination of John Roberts to succeed his former boss as Chief Justice.

This nomination is interesting because the short-term political arguments against it are substantial. Although the initial nomination of Roberts to replace O’Connor was generating more Democratic opposition than some initially anticipated, it was proceeding on track. A cautious approach would have let it proceed. Instead, the new nomination has already led to some delay in the hearing, and it will also give Senate Democrats some seemingly neutral (but spurious) arguments to hide behind in opposing Roberts.

The new nomination also re-opens the matter of replacing O’Connor. Although the arguments for “maintaining the current balance” on the Court are contrived and intellectually bankrupt, they undoubtedly have some political sound-bite appeal. The President impressively ignored these arguments when he first nominated Roberts, and he deserves our trust that he will do so again and select the candidate he regards as best qualified for the position.

Why, then, did the President make this new nomination? My guess is that the White House’s Plan A from months ago was premised on a Rehnquist resignation and that Roberts was the President’s leading contender for Chief Justice. With Rehnquist’s death this past weekend, the President simply reverted to Plan A—and, by replacing Rehnquist with one of his former clerks, also paid special honor to the Rehnquist legacy. A collateral benefit, of course, is that the pool of candidates regarded as suitable for the now-open Associate Justice position is significantly larger than the pool would have been for the Chief Justice position.

If my speculation is correct, this is further encouraging evidence that the President makes these decisions with the long term in mind and bases them heavily on principle rather than politics.



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