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Chief Justice leaves his friendly confines for Trump impeachment trial

Will anyone in the Senate know his favorite dessert?

President Donald Trump greets Chief Justice John Roberts after addressing a joint session of Congress in the House Chamber in February 2017. (Tom Williams/CQ Roll Call file photo)
President Donald Trump greets Chief Justice John Roberts after addressing a joint session of Congress in the House Chamber in February 2017. (Tom Williams/CQ Roll Call file photo)

Charles E. Grassley was one of the first senators to suggest Chief Justice John G. Roberts Jr. might be uncomfortable presiding over the Senate’s impeachment trial of President Donald Trump — in part because it will be televised.

The Iowa Republican, who will swear in Roberts for his role Thursday, has long been an advocate for adding cameras to the Supreme Court. But Roberts and the other justices haven’t budged. They still conduct oral arguments and announce opinions in a courtroom without cameras or cell phones.

“Chief Justice Roberts will preside over impeachment trial on TV I hope he gets comfortable in front of cameras in Senate chamber &warms up 2 cameras in courtroom @ Supreme Court Transparency wld allow more Americans 2see our judicial system @ wrk,” Grassley tweeted Tuesday.

There’s plenty more than cameras that could make Roberts uncomfortable during the trial, if the past is any clue. He’ll have to trade his usual private chambers for a spot just outside the Senate chamber. The scheduling will mess with his duties as the head of the Judicial Branch during a Supreme Court term stocked with high-profile and divisive cases.

Little inconveniences

There could be boring trial breaks. On the rostrum, he’ll be asked to make immediate decisions on contentious political questions. And, if the timing works out, he might have to spend part of his 65th birthday Jan. 27 presiding over the World’s Greatest Deliberative Body, which bans balloons from the premises.

Will anyone know his favorite dessert?

William Rehnquist, the chief judge who presided over Bill Clinton’s impeachment trial, was lucky enough to have a friendly face in then-Senate Sergeant at Arms James Ziglar, who told CQ Roll Call how he found out what sweets kept the chief justice happy.

Ziglar and Rehnquist were friends because he had worked with Rehnquist at the Justice Department, worked on Rehnquist’s confirmation, and was a clerk for another Supreme Court justice.

They went to lunch during the trial and Rehnquist was complaining. “I said to him, chief, what can I do to make you less grumpy?” Ziglar said. “He smiled and said, ‘I guess I have been, haven’t I.’” And the chief justice promised he would be nicer if he had a chocolate chip cookie and ice cream during the trial breaks.

After that, Ziglar said he kept those items on hand in the senators’ dining room for when there was a break of two or three hours and Rehnquist wasn’t headed back to the Supreme Court.

“I just had them keep the ice cream in their freezer, and they kept the cookies on hand,” Ziglar said. “One of my staff would run down to the restaurant literally one floor before and it was up there in five minutes.”

Rehnquist took over the president’s room for the trial, which is just off the Senate floor. The Senate has not indicated where Roberts’ space will be, but the Supreme Court press office said Thursday that it expects it will be the same space.

Rehnquist was forced to cool his heels in Ziglar’s office for nearly two hours one day as the senators shuffled to and from impromptu meetings and finished drafting language for a compromise plan for Clinton’s impeachment trial, Roll Call reported at the time. Ziglar back then said he “told him all my jokes and sang him all my songs.”

There will be other bouts of boredom. Rehnquist liked to play poker, and Ziglar said he walked into the president’s room one day to find a live game of poker with pennies, nickels and dimes. Ziglar said he looked at him and said, “Chief, I’m also the chief law enforcement officer in the Senate, and gambling is not allowed.”

Ziglar said he left and checked back five minutes later to find all the money was replaced with colored pieces of paper labeled with 1, 5 or 10.

Roberts will have the assistance of the counselor to the chief justice and other support staff from the Court, as well as help from one of his law clerks throughout the trial, the Supreme Court said.

When Roberts presides, both Democrats and Republicans have said they will pursue politically contentious issues that Roberts will have the chance to rule on, such as whether witnesses should be called or evidence should be admitted.

“In the Senate, he is going to be determined to stay as far out of politics as possible and avoid any hint of any decisions that could have any political valiance, and to play it completely down the middle,” said Jeffrey Rosen, the National Constitution Center president and chief executive officer who has written about Roberts’ approach to the role of chief justice.

Roberts has talked about his overriding concern to maintain the legitimacy of the court as non-partisan, Rosen said. When he is in a courtroom, he’s determined to be fair and neutral and to make all sides feel like they are being heard.

“So, although he’s not inherently comfortable in political arenas — because when he’s a judge he should not be political — I think he will recognize and welcome the opportunity that the Constitution affords to dignify this mix of political and legal proceedings with the presence of the Judiciary,” Rosen said.

And Roberts will be aware of Senate impeachment trial rules that not only allow a vote to have the majority overrule any decision he makes, but that he can avoid making a decision and just have the Senate vote instead.

Roberts has been “preparing appropriately,” the Supreme Court press office said, and “has reviewed the Senate Rules and past proceedings.”

Roberts likely will defer to the Senate’s own rules, and the Senate’s parliamentarian, to “do his best to avoid any decisions that can be contested or even attributed to him,” Rosen said.

At least one thing will be comfortable: Roberts will wear his judicial robe, the same robe he wears for oral arguments.

Supreme Court schedule

From across the street from the Capitol Building, Roberts will go by car to the Senate each day of the impeachment trial, and will be escorted by a Supreme Court security detail, the Supreme Court said.

The court typically hears oral arguments from 10 a.m. to about noon, and if the Senate follows previous rules the impeachment trial would start in the afternoon.

“In the unlikely event the Chief Justice had to leave the bench before arguments conclude, the most senior associate justice, Justice [Clarence] Thomas, would preside in the Courtroom,” the Supreme Court said. “In the unlikely event the Chief Justice were required to miss oral arguments, he would participate in the cases on the basis of the briefs and the transcripts of oral arguments.”

The Supreme Court has oral arguments scheduled for Jan. 21, when the Senate is expected to start the trial in earnest. There are also arguments set for Jan. 22, a closed-door conference to discuss cases on Jan. 24, and a non-argument day on Jan. 27.

But then the Supreme Court does not have anything scheduled until Feb. 21. However, the justices are working on opinions for cases they already heard this term and preparing for oral arguments on issues such as abortion and congressional subpoenas for Trump’s financial documents.

“The Chief Justice and his law clerks will conduct Court work as they usually do, using computers and hard copies of briefs,” the Supreme Court said.

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