September 9, 2005

Roberts, Rehnquist and the Judicial Confirmation Process

Ever since Justice Sandra Day O’Connor announced her intended retirement from the Supreme Court on July 1, 2005, the subject of her Bush-nominated successor has been discussed by pundits, politicos and everyday people alike. When Chief Justice William Rehnquist somewhat unexpectedly lost his long-fought battle against thyroid cancer on September 3, 2005, the bench found itself faced with the possibility of two vacant seats, and at the center of a politicized scramble to decide the make-up of the most powerful court in the nation.

On September 8, 2005, the Law School hosted a discussion entitled “Roberts, Rehnquist and the Judicial Confirmation Process,” which gave panelists Richard Epstein, visiting professor from the University of Chicago Law School, and professors Burt Neuborne, Barry Friedman and Cristina Rodríguez an informal opportunity to debate and answer questions about the confirmation proceedings. Vanderbilt Hall, Room 204 quickly filled to capacity, forcing students and faculty to lean against walls, sit between rows or stand outside the classroom doorway to hear the provocative and insightful discussion, moderated by Vice Dean Clay Gillette. Although the panelists agreed that Roberts’ confirmation is inevitable, their reasoning for how the process should serve the American people varied greatly.

Epstein began the lively discussion by asking how one should approach the current judicial confirmation process. He felt that the distinguished résumé of chief justice nominee John Roberts adequately reflected the judge’s genuine ability to see past political differences—prior decisions that Roberts made were simply “role-bound.” Friedman next served up his own impression of Roberts as being a handsome, conservative and intelligent lawyer who just might be a confirmable matinee idol version of failed Reagan nominee, Judge Robert Bork. He did, however, feel that a nominee’s ideology should be taken into consideration during the confirmation process.

Neuborne agreed that Roberts was easily confirmable—that Democrats would exercise some self-restraint during the confirmation process—but highlighted the important role the Senate plays in regard to advice and consent, saying “each senator is a mini-president.” Rodriguez was far more oppositional and felt that a bigger fuss should be made during Roberts’ confirmation hearings. “The function of the hearings is to give a window into the Supreme Court to the people,” Rodriguez said. She felt that more salient questioning, without specifically asking Roberts to prejudge cases, needed to take place in order to articulate specific constitutional values.

The four panelists also discussed the role that politics plays during the nomination and confirmation processes. They cautioned that opposing or striking down a nominee for partisan reasons precluded truly qualified judges from being confirmed and created a pointless cycle of political revenge. Friedman noted that contemporary nominees are often chosen on the basis of who can most easily get through the Senate. But, with a Republican majority in both houses, President Bush has little reason to fear that his candidate will be sent home. Instead, the president might opt to take his time in nominating a second justice, and look to fill Justice O’Connor’s seat with a person who appeals specifically to minority voters for the 2006 and 2008 elections; the conservative favorite being Attorney General Alberto Gonzalez.

Professor Neuborne concluded the discussion by briefly highlighting the Rehnquist legacy, saying that although he typically found himself in opposition to the chief justice, his administrative acumen and his stable, quick and just approach to the Court were admirable. He ended with an anecdote intended to exemplify Rehnquist’s modesty. Neuborne once found himself in an airport with the chief justice some years ago. While going through the security checkpoint, Rehnquist set off the alarm bells of the metal detector and was subsequently instructed to remove his shoes and his personal belongings in order to be inspected more thoroughly. Chief Justice Rehnquist followed the instructions he was given without protest, never telling the security officer who he was.

–Graham M. Reed