Howard J. Bashman's appellate columns, etc.

The Chief Justice is Dead; Long Live the Chief Justice

By Howard J. Bashman
Monday, September 12, 2005
In addition to dealing with the quite unsettling scenes of death and devastation from Louisiana and Mississippi and the unexpected news of Chief Justice William H. Rehnquist's death, over the past days I have done my best to adjust to the realization that my chance of serving as Chief Justice of the United States is nearer to nonexistent than ever.

To be sure, my name has appeared on no "short lists" for the Chief Justice's position other than my own, although The Daily Journal (a California–based legal newspaper) once reported that I was under consideration to fill a vacancy on the U.S. Court of Appeals for the Third Circuit. Yet the George W. Bush administration has compiled an admirable record of nominating appellate lawyers to appellate judgeships. And I am an appellate lawyer -- I'm even a member of the dreaded Federalist Society -- so it never hurts to aim high.

I am not delusional enough to have expected to be named Chief Justice at this time, of course. I am now just on the verge of turning forty–one, and my "judicial experience"” (if time serving as a moot court judge is ignored) is limited to having served as a law clerk for two–years to a Third Circuit judge who himself at one point was rumored to be a U.S. Supreme Court nominee.

Chief Justice nominee John G. Roberts, Jr., as the news media regularly remind us, is now 50 years old, and if he serves until the age of 80, as Chief Justice Rehnquist did, then I will be over 70 years old when the post of Chief Justice is next vacant. At that point, undoubtedly a young whippersnapper who today is still in college (or perhaps in elementary school) will be the obvious choice for Chief.

Barring any further postponements, this afternoon in the Senate Judiciary Committee the confirmation hearing of John G. Roberts, Jr. to become Chief Justice of the United States is scheduled to begin. It is emblematic of the ultimate uselessness of these hearings that today's proceedings will be devoted to a half–day of statements without any time for testimony from anyone.

And even when the schedule turns to testimony, as it will tomorrow when the nominee is scheduled to begin a grueling two days behind the microphone, the vast majority of the time is consumed by the speechifying of U.S. Senators who would rather hear their own voices than the nominee's answers to questions.

When the Judiciary Committee held hearings on John G. Roberts, Jr.'s nomination to the D.C. Circuit, one Republican Senator on the committee accused a Democratic Senator on the committee of asking "dumb–ass" questions. While U.S. Senators are certainly free to borrow dialogue from "Beavis and Butthead" episodes for use in their on–the–record interactions, one hopes that this time the proceedings will be more dignified all around.

Notwithstanding Chief Justice Rehnquist's refusal to concur in the Supreme Court's "right of privacy" jurisprudence, he did not hesitate to exercise his own right to keep private the details of his medical condition. Thus, while many medical experts opined after Chief Justice Rehnquist's diagnosis of thyroid cancer became public that the treatment he was receiving indicated a form of the disease that was likely to prove fatal sooner rather than later, the Chief Justice never revealed whether he had that type of thyroid cancer and, in July 2005, issued a statement disavowing any intention of resigning from the Court.

It was Chief Justice Rehnquist's desire to serve at least one more year in that post. And had he done so, it appeared certain that the U.S. Senate would have confirmed Judge Roberts to replace Justice Sandra Day O'Connor as an Associate Justice. That would have spared the eleven–Term "junior" Justice, Stephen G. Breyer, from having to continue in the junior Justice's role as door–keeper at the Court's private conferences. The Supreme Court is one of the few places in America where the junior employee is old enough to be collecting Social Security retirement benefits.

Whether or not you view favorably President Bush's decision to withdraw Judge Roberts as the successor to Justice O'Connor and instead nominate Judge Roberts for Chief Justice, this recent development is clearly good news (at least for the time being) for liberals dismayed with the impending rightward shift that the Court was about to take. Justice O'Connor was of course notorious as a centrist swing–vote, and it appeared certain that having Judge Roberts replace her would move the Supreme Court in a more conservative direction.

Now, however, Judge Roberts will be replacing his former boss, Chief Justice Rehnquist. That change in the Supreme Court's composition is unlikely to alter the Court's overall doctrinal outlook. Had Chief Justice Rehnquist served through July 2006, perhaps the Bush Administration could have then replaced the Chief Justice with another conservative jurist, cementing a gain of one conservative seat on the Court.

Instead, Chief Justice Rehnquist is being replaced by someone many view as a Rehnquist clone, and the pressure will again be strong to replace Justice O'Connor with an O'Connor clone. Judge Roberts, a charming conservative with a Teflon–coated past (overlooking, as the U.S. Senate is about to do, some snide memos written as a young White House lawyer), was capable of achieving enough support to be confirmed to replace Justice O'Connor without triggering the so–called anti–filibuster "nuclear option" in the Senate. Whether anyone else exists who could thread this same needle remains to be seen, but many are understandably skeptical.

Because Judge Roberts is no longer slated to replace on the Court the most powerful woman in America, the U.S. Senate during this week's confirmation hearing can focus on minutia if it wishes. For example, will a Chief Justice Roberts continue the tradition of wearing gold bars on the Chief Justice's judicial robe? Will a Chief Justice Roberts continue the tradition of silencing arguing counsel mid–syllable when the red light signaling the end of counsel's time illuminates?

And how long will it take for a Chief Justice Roberts, who has repeatedly supported the enactment of a Federal Rule of Appellate Procedure allowing non–precedential opinions to be cited to all U.S. Courts of Appeals over the vociferous opposition of the behemoth U.S. Court of Appeals for the Ninth Circuit, to oversee the dismantling of the Ninth Circuit into two or more manageably sized federal appellate courts?

But these questions, of interest to appellate geeks, likely won't be asked this week. Instead, odds remain good that once again Judge Roberts will be required to respond to some dumb questions during this week's confirmation hearing. Although U.S. Senators in the past have done quite well on their own in formulating such questions, online at my "How Appealing" web log I recently held a contest to see what additional dumb questions readers wanted Judge Roberts to answer.

Among the submissions that I received were the following queries: "Judge Roberts, in describing the arroyo toad as 'hapless,' are you not guilty of insensitive specie-ism?"; "International law, penumbras, or public opinion, which would you use to protect the right of individual citizens to define their own existence in the universe?"; "Speaking of 'originalism,' do you prefer 'original' or 'extra crispy' at KFC?"; and "In your view, which member of the Senate Judiciary Committee is the biggest dumb–ass?"

These reader submissions are also unlikely to be asked during this week's hearing, although several female Democratic Senators likewise recently solicited over the internet questions from the public for Judge Roberts. But I feel confident that whatever the quality of questions that Judge Roberts receives this week, he will emerge unscathed and will have a lengthy and distinguished tenure on the U.S. Supreme Court. Meanwhile, I can still hold out hope for an Associate Justice's position.

This article is reprinted with permission from the September 12, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.