My Turn: Roberts likely next chief justice

The death last week of U.S. Supreme Court Chief Justice William H. Rehnquist has raised the stakes for President Bush, who now has the historic opportunity to nominate at least two people to that august body.

President Bush seized on that opportunity fast, by elevating Federal Judge John Roberts as his nominee to replace Chief Justice Rehnquist, instead of replacing Associate Justice Sandra Day O’Connor. Meanwhile, Justice O’Connor has acceded to the president’s request for her to stay on until another replacement is named for her.

The choice of Judge Roberts for Chief Justice also raises the stakes for his supporters and opponents in the United States Senate, and far beyond, to individuals and interest groups across the political spectrum.

As with most political controversies, more heat than light is likely to be shed on Judge Roberts’ confirmation hearings. For example, those who criticize President Bush for not “promoting from within” are entitled to their own erroneous beliefs about how “extraordinary” his decision not to do so was. The truth is nine of the 16 chief justices so far have come from outside the Supreme Court.

It will be up to the Senate leadership, majority and minority, first in the Judiciary Committee, then on the Senate floor, to see that Judge Roberts gets a full, fair hearing and a clear, up-or-down vote. Barring some bizarre development, I believe he will get both, and be confirmed by a large majority of the U.S. Senate.

As for Justice O’Connor’s replacement, the president is already being pressured to nominate a woman, an Hispanic, or perhaps even an Hispanic woman. Whether he succumbs to that pressure is an open question.

However, one thing seems clear to me. The president will nominate precisely the qualified person he wants, who shares his political philosophy, and who will extend the president’s legacy far beyond 2009. That’s what presidents get to do, and have been doing, since the first “G.W.” — George Washington.

Back to Judge Roberts. Upon confirmation, he would become the 17th Chief Justice of the United States Supreme Court. At age 50, he would be the youngest since Chief Justice John Marshall, who was in his mid-40s when he assumed that post in 1801. Marshall was Chief Justice for 34 years, the longest serving chief justice in American history. He left an indelible imprint upon the Supreme Court, most notably by claiming for that court the power of “judicial review,” meaning the court’s power to declare acts of the legislative and executive branches unconstitutional. The Supreme Court asserted this right, not found explicitly in the U.S. Constitution, in the famous Marbury v. Madison case in 1803.

The concept of judicial review, though controversial at the time it was claimed, has since become one of the basic principles of the American system of government, giving the Supreme Court vast power, not just over the other two branches of government, but over such matters as public policy on property and civil rights. We have John Marshall to praise or pillory for that.

Whether John Roberts will rise to the heights of longevity and legacy achieved by John Marshall will be for future pundits and historians to decide. Right now, his focus seems to be right where it should be: on getting the job his mentor and lifetime friend, William H. Rehnquist, held so long and did so well.

Thomas B. Vaughn is a professor at Motlow College and co-host of “Viewpoints” which airs on WCPI 91.3 FM.