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And the next nominee to the High Court?

By Paul M. Weyrich
web posted October 3, 2005

It isn't often that one has the opportunity to witness history. However, Thursday last in the East Room of the White House I attended the swearing-in ceremony of Judge John G. Roberts, Jr. as Chief Justice of the United States. President George W. Bush is our 43rd President. John Roberts is our 17th Chief Justice. President George Washington appointed John Jay as our first Chief Justice in 1789.

John Roberts (L) raises his hand as he is sworn in as the 17th chief justice of the United States by Supreme Court Associate Justice John Paul Stevens (R) as Roberts' wife Jane watches during a ceremony in the East Room of the White House in Washington on September 29

Senior Associate Justice John Paul Stevens administered the oath. I couldn't help but wonder as I heard the new Chief Justice repeat the words "so help me God" how he would rule when cases involving public references to God, such as in the Pledge of Allegiance, come before the High Court.

Both President Bush and Chief Justice Roberts spoke briefly before Chief Justice Roberts greeted and, in many cases, was photographed with, some 300 people who attended the ceremony. Roberts was genial. He surely had reason to be. The 78 - 22 vote for his confirmation is a testimonial to his brilliance.

For my colleague Marion Edwyn Harrison the event brought back memories. Nineteen years ago in September Mr. Harrison, a close friend of Associate Justice William H. Rehnquist, witnessed his swearing-in as Chief Justice. Chief Justice Roberts, who clerked for Rehnquist and considers Rehnquist his mentor, undoubtedly wished that his mentor could have presided over the swearing-in ceremony.

Today Chief Justice Roberts formally begins his new position with Sandra Day O'Connor still on the High Court. At the White House I spoke with Senators who witnessed the occasion, including one of the Gang of 14 who broke with his Leadership to reject more filibusters of judicial nominees except under "extraordinary circumstances." Strikingly, these Senators, who sometimes disagree, said the Senate would be facing what Senate Majority Leader Bill Frist (R-TN) calls the "Constitutional Option." That would mean an amendment to Rule 22 of the Standing Rules of the Senate, which now permits unlimited debate, to exclude the filibuster of judicial nominees. Thus, Senators could be confirmed with 51 votes instead of 60 votes now required to break a filibuster. No Senator with whom I spoke disagreed with the proposition that Senator Frist would be required to change the Senate Rules in order to assure confirmation of the next Supreme Court nominee.

Imagine, Democratic National Chairman Howard B. Dean, III, M.D., and various liberal Senators, including two so-called moderate members of the Gang of 14, without knowing the identify of the next nominee, already are trumpeting the filibuster and signaling strong opposition.

Who won the election? The cornerstone of the Bush Campaign a year ago was that if re-elected President Bush would nominate Justices to the Supreme Court "like Scalia and Thomas." Justice Clarence Thomas speculated that neither he nor Justice Antonin Scalia could have been confirmed if either had been nominated for Chief Justice were liberal Senators able to organize a filibuster under the present Rule 22. These Liberals are acting as if they, and not Bush, had won the 2004 Election.

Senator John S. McCain, III, is correct in saying that elections have consequences. During the 2004 Bush Campaign President Bush received the strongest applause while delivering his line about judges. He made it clear what sort of nominees he would send to the Senate for confirmation. His one question of any nominees would not be "Do you intend to overturn Roe v. Wade?" Rather, it would be "Do you believe that Justices should not attempt to make the law but rather should interpret the law?"

No wonder Liberals are threatening a filibuster before the next nominee has been announced. The 22 Senators who voted against Roberts profess to believe that Roberts didn't answer questions posed by the Senators. Roberts followed the Ruth Bader Ginsburg precedent, herself a former ACLU counsel, who often had expressed controversial opinions. During her Supreme Court confirmation hearing she refused to hint at how she would rule on cases which possibly might come before the Supreme Court. Of course, the next nominee will go down the same path.

Justice Ginsburg was asked during a lecture at Wake Forest University if Judge Roberts correctly declined to answer questions about cases upon which Roberts, if confirmed, might have to rule. "Judge Roberts was unquestionably right," Justice Ginsburg replied. "My rule was I will not answer a question that attempts to project how I will rule in a case which might come before the court." Justice Ginsburg explained that "a judge on a collegial court should never forecast how he or she would vote on particular issues."

Some Senators will lecture the next Bush nominee claiming that he or she has an obligation to give Senators an idea of the nominee's position on issues which might come before the High Court. Justice Ginsburg's words will be repeated and while I would be hard pressed to be grateful for her jurisprudence I am very grateful for her statements regarding the Roberts nomination and the correct response of nominees.

It is rumored that one Senator during the Roberts hearings suggested that Justice Ginsburg's view on answering questions was misinterpreted. The Senator can't very well say that now. Justice Ginsberg's statement is clear and unambiguous.

Howard Dean claims that President Bush has no qualm about nominating unqualified people to the Federal Judiciary. I have no idea about whom Dean speaks. Harrison, who handles judicial nominees for the Free Congress Foundation, has said that the Bush nominees for the Federal Courts of Appeal have been outstanding. Others have said the Bush nominees are even better than those nominated by President Ronald Wilson Reagan and Bush's father, President George Herbert Walker Bush.

Most people don't realize that more than 95% of appealed cases conclude in the Circuit Courts of Appeal. The Supreme Court hears a small number of cases. Thus, Circuit Courts Judges are as important as Supreme Court Justices.

Will Frist have the votes for the Constitutional Option if the Senators are correct? Frist believes he has the votes. The truth is only God knows. Frist could afford five defections and still win because Vice President Richard B. Cheney could break a tie vote. We already are certain of three defectors and know of two more who are questionable. The Presidential Election itself produced a nail-biter. The vote on the Constitutional Option will be another. Perhaps a little drama will help voters to understand what is at stake here: the future of the Republic.

Paul M. Weyrich is the Chairman and CEO of the Free Congress Foundation.

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