The Supreme Court nomination hearings for Judge John Roberts have been delayed in the wake of the death of Chief Justice William Rehnquist, as President Bush decided Monday to elevate Roberts from an associate justice nominee into the role of Rehnquist’s designated successor.
The crush of events prompted the White House and Senate leaders to agree it would be inappropriate to hold hearings — originally slated to begin today at 1:30 p.m. — for what will now be Rehnquist’s seat while the late chief justice lays in repose in the Supreme Court today and tomorrow.
Senate Majority Leader Bill Frist (R-Tenn.), in a rare Labor Day meeting with the Capitol press corps, said hearings for Roberts would instead likely begin either Thursday or Monday, which allows for the commemoration of Rehnquist and his funeral and burial services at Arlington National Cemetery on Wednesday.
Regardless of the start date, Frist is confident Roberts will be confirmed and said he has already set aside the final week of the month for floor debate and a vote on his nomination.
“Judge Roberts will be confirmed before the start of the Supreme Court term,” he predicted Monday.
The preference on both sides of the aisle appears to be having hearings begin Monday, but Republicans want the “highest level of certainty” that they’ll get a final vote on Roberts by the end of the month before agreeing to that timeline, according to a senior GOP aide. Such a vote, if Roberts is confirmed, would allow him to become chief justice in time for the start of the court’s new session on Oct. 3.
Reid, in a press conference prior to Frist’s, said Roberts would face a higher level of scrutiny in the hearings because of the symbolic importance that the chief justice post holds. “Certainly his job is different than associate justice,” he said.
While he didn’t immediately agree with demands from Democrats such as Sen. Edward Kennedy (Mass.) that Bush signal whom his second Supreme Court pick will be before the vote on Roberts, Reid said he is hoping for a high degree of consultation with the Senate before that selection is made — similar to the 19 days of talks Bush engaged in with the Senate in July before the Roberts nomination.
“I hope he does it again,” Reid said.
Frist said he has yet to talk to White House officials about the pick to succeed retiring Justice Sandra Day O’Connor and was unclear when it would be made, although GOP aides expect the process to move quicker than in the Roberts situation since the White House has so recently vetted potential nominees for the high court.
Even if the nomination were to come immediately, it would take four weeks or more to vet the nominee and likely at least another month of hearings and floor debate before a possible confirmation. That means the court would function with either eight justices — if Roberts is confirmed — at the outset of this term or O’Connor will have to temporarily remain on the court until her successor is confirmed. It’s unclear how practical it would be for O’Connor to hear cases for which she won’t ultimately be on the court when the decisions are rendered later in the term.
Rehnquist’s passing and the delay in hearings did nothing to quiet the activist groups, as supporters and opponents of Roberts now struggled with how to handle a two-front war involving the makeup of the high court.
Both the conservative group Progress for America and the liberal NARAL Pro-Choice America continued to air ads in support of and against Roberts, respectively, throughout the weekend and into this week.
In fact, Progress for America is adding onto to its current $400,000 ad buy in support of Roberts with another $25,000 radio buy in an ad that recalls Kennedy in 1967 saying Thurgood Marshall, a Supreme Court nominee at the time, shouldn’t answer questions that would force him to prejudge cases. Like the $400,000 worth of TV ads, which are running on CNN and Fox News, the radio buy is designed to influence Beltway decision-makers and are airing only in Washington on WTOP and WMAL today through Thursday.
The liberal coalition opposed to Roberts convened an emergency conference call Monday morning of up to 60 groups to talk about strategy for the dual openings. The immediate decision appeared to be to keep up the pressure on the Roberts nomination, despite the continued show of support he has from moderate Senate Democrats, for fear of repeating the strategy taken by liberals in the 1986 fight for Rehnquist’s nomination to chief justice.
In that battle, Senate Democrats and the outside groups focused their fire on Rehnquist, hoping to block his elevation and thereby leave no opening for Antonin Scalia to become associate justice. After the Rehnquist fight concluded with a 65-33 confirmation vote, no effort was put into defeating the conservative Scalia, who won a 98-0 vote.
“The Senate will not repeat the mistake of giving a free pass to one of the nominees,” Nan Aaron, president of Alliance for Justice, said in an interview after the liberal conference call.
While the situation is different than 19 years ago — defeating Roberts would not guarantee blocking the other nominee — the resources required will be sizeable if the groups launch a full-fledged battle over both nominations. Progress for America has on hand more than half of the $18 million it intended to spend on the first nomination fight, money that it hopes to spend on the new battle as long as the Roberts fight doesn’t blow up with surprise revelations.
Ralph Neas, president of the liberal People For the American Way, said advertising dollars wouldn’t be as important because of the high level of media saturation the hearings will be given. With the left’s immediate focus remaining on Roberts, Neas predicted this battle would be similar to the level of intensity of such confirmation fights as Justice Clarence Thomas’ in 1991.
“I think this will rank right there in terms of public awareness,” he said.
The hearings are expected to play out much as they would have when Roberts was the selection to succeed O’Connor. The first day is still slated for opening statements by the 18 Senators on the Judiciary Committee, after which Roberts will give his opening statement — his most lengthy public address since first being nominated July 19.
The second and third day of hearings would be devoted to committee members questioning the nominee, followed by two days in which the panel would talk in a closed-door session about Roberts’ top-secret FBI file and then hear public testimony in which 15 witnesses from each side present their case for and against the nominee.
Barring any unforeseen developments that would prompt more hearings, the five-day timetable is set to play out in one of two ways. If hearings begin Thursday, the panel will wrap up on Sept. 14 and reconvene the next day to vote on a recommendation for the nominee.
Beginning the hearings Thursday would allow for the nomination to get to the full Senate with more than two weeks remaining before the start of the court’s session.
If instead the hearings begin Monday, Judiciary could wrap up its work by Sept. 16 and hold its so-called “executive markup” of the nominee on Sept. 22, leaving six working days — plus weekends, if necessary — to finish the nomination on the full Senate floor.