Category Archives: Law: The Supremes

It turns out that John Roberts, Jr. will not be another middle-aged white guy on the Supreme Court. Yeah, Roberts is a middle-aged white guy; but, in fact, the Court doesn't have any others. Roberts will be joining a Court with one (middle-aged) black guy, a white woman (in her 70s), and six more white guys each of 'em old enough to collect full benefits from Social Security. So you can see this nomination as real progress in the direction of diversity on the Supreme Court.

What more to say? He's apparently a very good lawyer. He's a pillar of the Federalist Society and the Washington conservative establishment, described by a friend as “as conservative as you can get.” But he's spent the key years of his professional career either in the (Reagan) Solicitor General's office, where the positions in the briefs he submitted didn't necessarily reflect his personal opinions, or as a litigator at Hogan and Hartson, where the positions in the briefs he submitted … didn't necessarily reflect his personal opinions. So he's got no paper trail.

He'll be confirmed, but there'll be fireworks first. How Appealing reminds us that during Roberts's last Senate Judiciary hearing, Orrin Hatch took the position that fellow Judiciary Committee member Charles Schumer was asking Roberts “dumbass questions” (and Roberts, for what it's worth, didn't answer them). Expect more of the same.

CORRECTION: I made an error, above, in describing Roberts's bio. While he spent four years in the White House Counsel's Office under Reagan, his stint as Principal Deputy Solicitor General was under Bush I.

I wrote here that I thought it would be in the Democrats' interest for President Bush to name a new Chief Justice this summer. But for all that, I was tremendously pleased to read Rehnquist's statement that he wishes to “put to rest the speculation and unfounded rumors” of his imminent retirement, and that he will perform his duties on the Court “as long as [his] health permits.”

Cool. Why? Mostly because I've a lot of experience (rather too much) with my loved ones struggling with cancer, and one thing I know is that you have to fight. On a personal level, I'm rooting for him, and I'm buoyed up by his choice that he's not going to give in easily. You need to struggle and be stubborn and ornery and strong and brave, and that's what he's been doing — with matter-of-factness and good humor, no less — and good for him.

A story I like to tell: My dad, Norman Weinberg, served with Rehnquist in 1943 in an Army Air Force Technical Training Detachment at Denison University in Ohio. (That, and subsequent postings, kept the two privates safely out of combat.) I've got a class book from that year, which describes “Hubbs Rehnquist, that great liberal and crusader for the Wisconsin dairy farmer,” as “[l]azily stretched out on his bed with his patented eye-ear-nose sleeping bag over his head.” (I have no idea whether the first part of this description was ironic or straightforward.)

More than forty years after all that, I met then-Justice Rehnquist for the first time. I introduced myself as Jon Weinberg, and mentioned to him that he had served with my father at Denison. His reaction: “Not Norman Weinberg?”

I've had a fondness for him ever since.

We're in Day Five of the Rehnquist resignation watch, ever since rumors of a Rehnquist resignation started to swirl Friday, while Chief Justice Rehnquist kept on refusing to validate them by actually resigning. As Josh Marshall has suggested, it's in the Democrats' interest for Rehnquist to resign now. If Bush gets one nomination now, he'll likely pick a hard-liner (because that's who he'll want). The Democrats will filibuster, the Republicans will invoke the nuclear option, and Bush will get his appointment. If Bush gets one nomination now and one a year from now, same story (twice). If Bush has to fill two seats now, it's less clear that he'll be able to get away with appointing two hard-liners — he'll face some peel-away in his own party.

Indeed, Jack Balkin makes the good point that the Republican Party shouldn't want too many Justices who'll vote to overturn Roe v. Wade. For Justice Mike McConnell, say, to be sitting in O'Connor's seat, next to Justice Emelio Garza in Rehnquist's and Justice Janice Rogers Brown in that of a suddenly incapacitated John Paul Stevens, would be a Really Bad Thing for the G.O.P. It would mean, among other things, a ruling next Term that Roe had been wrongly decided, likely followed by swift passage through the House of Representatives of the Abortion Ban Act of 2006 — barring the performance of abortions, nationwide, by any medical practitioner wearing an article of clothing that had moved in interstate commerce, or breathing molecules of air that had at some point moved across state lines. It's hard to think of anything better calculated to convince your typical independent voter that the Republican Party aren't her kind of people after all. Much better, from the party's standpoint, to appoint somebody who will pay lip service to Roe, while letting it die the death of a thousand cuts.

Stay tuned …