Chief Justice

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(HOST) As the U.S. Senate has been preparing to debate the John Roberts nomination, commentator Olin Robison has been considering the importance of the hearings – and the possible outcome.


(ROBISON) There is already a broad consensus in Washington that in due course John Roberts will be confirmed to be the next Chief Justice of the United States. He will then fill the seat vacated owing to the death of Chief Justice Renquist.

There is a ritual quality to the public discussions about Roberts. And there is also broad agreement on the part of both the Wash- ington press corps and of the so-called political ruling class that his being selected by the President underscores yet again George W. Bush’s political shrewdness.

The political right likes him because he has solid conservative credentials. The political left seems to console itself with com- ments to each other along the lines of, “….well, it could have been a lot worse.”

If my analysis is correct, then why don’t they, the Senate, just do it? Why don’t they just confirm him and get on to other business? Heaven knows there is plenty else for them to do.

Well, it is one of those odd moments in public life where the rather ritualistic Democratic opposition only really matters if they fail to conduct it.

We all know of course that life is full of those moments, both large and small; but this is a big one.

The Democratic questioning of Roberts is necessary for the sake of form, but also it allows them to put down certain markers. It is the Democrats’ only chance to make clear statements about a number of public policy issues where they really do disagree with their more conservative Republican collegues.

No one knows, neither Republicans nor Democrats, how Roberts will vote on key issues after he takes a seat on the Court. Nor will they know much more on that front after the Senate hearings. Historically, there have been a lot of surprises: conservatives coming to be perceived as liberals and vice versa.

But the hearings, ritualistic though they be, really do provide an important forum. The Republicans will do and say things that underscore their support – both of Roberts and of the President – and the Democrats will use the occasion to underscore their differences with the Republicans. All of this is critically important both for reasons of public policy and for the public images that are necessary for re-election.

But John Roberts knows all this and no one doubts his I.Q. There is every reason to anticipate that he will handle all of this intel- ligently, both with grace and with aplomb.

And then, down the road, if his votes on issues before the Court are less conservative than the Democrats now fear, they will be able publicly to take some of the credit. If Roberts really does prove to be arch-conservative, the Democrats will at least be in a position to say, in effect, “….we told you so.”

It is indeed the case that occasionally the president’s nominee never receives the necessary confirmation. More often than not, when this rare occurrence actually happens, it is because of the withdrawal of a name rather than a negative vote in the Senate. But the withdrawal usually happens to prevent a probable negative vote from taking place. I offer as examples the nomination of Abe Fortas to be Chief Justice by President Johnson and the nomina- tion of Harold Carswell by President Nixon. In the case of Robert Bork there was actually a negative vote.

But don’t expect that this time. I predict that Judge Roberts will soon be Chief Justice Roberts.

This is Olin Robison.

Olin Robison is past president of both the Salzburg Seminar and Middlebury College. He now lives in Shelburne.

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