Roberts in the Eye of the Storm


By Eamon Javers No doubt about it. A week of death and destruction in the South has changed the political calculus in Washington. But the betting is that the Senate will respond favorably to President Bush's Labor Day nomination of John Roberts as Chief Justice of the Supreme Court.

Before Hurricane Katrina and Chief Justice William Rehnquist's death, Roberts, 50, faced relatively smooth sailing toward confirmation to the vacancy opened with Sandra Day O'Connor's retirement. And although he'll face increased scrutiny as Bush's nominee for the 17th Chief Justice in American history, the same factors that made Roberts a strong candidate for O'Connor's post -- his impeccable credentials, scandal-free background, and telegenic appeal -- may well smooth his path when confirmation hearings begin Sept. 12.

"The fact that he has now been elevated to Chief Justice shouldn't slow us down at all," said Senator John Cornyn (R-Tex.), a White House ally on the Judiciary Committee. If anything, Roberts' confirmation becomes even more likely since he will be filling the slot of fellow conservative Rehnquist, in effect maintaining political parity on the court.

BARGAINING TACTIC. But now Democrats have an opportunity they didn't have before to pressure President Bush on his second pick -- a nominee to replace O'Connor, who had been a key swing vote on a closely divided court. A conservative pick for O'Connor's replacement would lock in conservative control of the court for a generation. But Democrats have been emboldened by outraged criticism of the President's lack of leadership in the hurricane disaster zone and will make a determined and vocal effort to push Bush toward a moderate choice.

"Justice O'Connor has been a voice of moderation and reason on the court and should be replaced by someone who, like her, embodies the fundamental American values of fairness, liberty, and equality," said Senate Democratic Leader Harry Reid (Nev.)

One potential tactic: Use Roberts as a bargaining chip. Senator Edward M. Kennedy (D-Mass.) is floating the idea that the Senate shouldn't vote on Roberts until it sees who Bush picks for the other slot: "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 nominate as a replacement for Sandra Day O'Connor," he said.

UNCARING ABOUT BLACK PEOPLE? It's far too early to tell whether the Democrats have the political muscle they need to hold the Roberts nomination as leverage over the choice of the second nominee. Republicans are hoping the vote will be cast quickly. Senate Majority Leader Bill Frist says he expects to have Roberts confirmed by Oct. 3, when the Supreme Court begins its new session. "Mr. Roberts is one of the most well-qualified candidates to come before the Senate," Frist said. "He will be an excellent chief."

The other open question concerns race and gender: With so much of the criticism of the federal response to Hurricane Katrina focused on the fact that the refugees were overwhelmingly black and poor, Bush could be under pressure to nominate a minority or female candidate to replace O'Connor.

Rapper Kanye West crystallized the criticism over the weekend with unscripted remarks during a nationally televised hurricane-relief fundraiser on NBC: "George Bush doesn't care about black people," he said. That's a message a Republican party increasingly concerned with reaching out to African American voters will not want to resonate into the elections of 2006 and 2008.

Rehnquist will lie in repose at the Supreme Court this week, and he will be buried at Arlington National Cemetery after his funeral Sept. 7, which gives Bush some time to consider his options. And because a second nominee probably won't be confirmed by October, the White House isn't under pressure to make an immediate pick.

Javers is a correspondent for BusinessWeek in the Washington bureau


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