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Supreme proceedings

Randy Beck

Five law school faculty discuss the upcoming confirmation hearing for Supreme Court nominee John Roberts

Five School of Law professors have served as clerks to justices on the U.S. Supreme Court. Associate Professor J. Randy Beck, University Professor and Hosch Professor Dan T. Coenen, Hosch Professor Anne P. Dupre, ­Assistant Professor John Neiman and Associate Dean and Rusk Professor of International Law Peter J. Spiro share their thoughts on U.S. Supreme Court Justice nominee John Roberts’s confirmation process, which is ­scheduled to begin Sept. 6.

Columns: U.S. Supreme Court justices have not always followed the anticipated ideological path of the president who nominated them. Do you think Roberts may become one of these justices?

Coenen: The wild card that hangs over everything else is to what extent will Roberts, once he’s on the Supreme Court, feel bound to follow precedent- including longstanding precedent that recognizes the right to privacy in general and the right to secure an abortion in particular. This is hard to predict, but one thing is certain:  a Court of Appeals judge (like Roberts now is) must follow Supreme Court precedent; a Supreme Court justice, in contrast, can follow or not follow any precedent to whatever extent he or she wants.

Spiro: There have been many notable instances in recent history of Supreme Court justices going off “the reservation” after their elevation to the bench. It seems most often to have been Republican presidents who have come to regret their appointments-Earl Warren, William Brennan, Harry Blackmun and John Paul Stevens. Some of the century’s most progressive jurists have been Republican nominees. The Bush administration is sensitive to this history. Roberts seems to be more conservative in his roots than some of these others. But with lifetime tenure, there are no guarantees.

Columns: Do you think Roberts’s confirmation process will be long and drawn out?

Beck: The ground rules I saw called for each of the 18 committee members to be afforded about an hour, divided among an opening statement and two rounds of questioning. That means Roberts could be testifying for about ­
two-and-a-half days. I do not know how many other witnesses are anticipated, but I would be surprised if the hearings ended up running more than five days.

Columns: What is the most contentious issue surrounding Roberts’s nomination?

Coenen: Abortion, as with every modern-era nominee. I suspect, however, we’ll hear questions about a variety of things. While working in the Reagan administration, Roberts took a broad view of Congress’s power to remove Supreme Court jurisdiction over particular classes of cases, such as abortion or school-prayer cases. I think we will hear some questions about that.

Dupre: The right to have an abortion has always been a contentious issue in the past, and I suspect it will be at or near the forefront during this nomination also. In addition, I suspect he will get questions about his views on the death penalty and perhaps about the powers of the executive branch.

Columns: Who do you think is going to be the most vocal during the confirmation hearings?

Beck: Based on statements made to date, I would expect Patrick Leahy, Edward Kennedy and Charles Schumer to be among the most active in challenging the nominee. Arlen Specter should play a prominent role as chairman. I would not be surprised to see Republicans like Orrin Hatch and John Cornyn helping the nominee to make the case for confirmation.

Dupre: Sen. Leahy has indicated he has a number of questions for the candidate. For instance, he wants to ask whether Roberts’s judicial temperament will match the temperament he had when he was working in the executive branch.

Columns: What will be the first major decision tested in the U.S. Supreme Court, if Roberts is confirmed?

Coenen: I think recently enacted legislation on so-called partial-birth abortion will be tested in the Supreme Court in the not-too-distant future. O’Connor provided the fifth vote for striking down the legislation on this subject that came before the court in an earlier case. Assuming such a case is heard, I predict Roberts will vote to sustain the more recent version of this legislation. What will be interesting to watch is whether he does so in a narrow or broad opinion.

Neiman: One potentially big decision in the pipeline, in which Roberts could have a major impact, involves a challenge to the federal Partial Birth Abortion Act. Several lower courts have said it is constitutionally invalid in light of Stenberg v. Carhart, a case decided a few years ago in which the Supreme Court said a very similar state statute was unconstitutional. But the court divided 5-4 there, with O’Connor providing the decisive fifth vote to strike down the statute. Roberts could vote the other way, which would allow the court to uphold the federal statute and in so doing would cast serious doubt on the court’s previous decision in Stenberg.

Columns: What type of influence does a new justice have on the Supreme Court’s processes and decisions?

Beck: Every justice gets one vote. Beyond that, the appointee’s influence depends on his or her ability to persuade colleagues, or at least change the nature of the court’s deliberations. Roberts may be in a better position to influence other justices than many new appointees. He has enjoyed a very successful career as an advocate before the Supreme Court, and therefore has much practice at persuading the justices to see things his way.

Neiman: A new associate justice, which Roberts would be, will likely have very little influence on court “processes,” like how the justices vote and how often they meet. The influence Roberts might have on the court’s “decisions,” on the other hand, might be substantial for a couple of reasons. First, because the court splits 5-4 in many cases, Roberts may often have the opportunity to cast a decisive vote. Second, Roberts might be able to assert substantial influence on his future colleagues simply through the power of persuasion. The justices know him already through his distinguished work as a lawyer before the court. And, as O’Connor’s comments to the press indicate, he seems to be extremely well regarded by his (likely) future peers.

Columns: What are some of the challenges Roberts will face if he is confirmed?

Neiman: Given his past experience as a clerk for then-Justice Rehnquist, as an executive-branch lawyer and as a private practitioner who has appeared regularly at the Supreme Court, I think he’s as ready to become a justice as you can be.

Spiro: Roberts comes out of the Washington legal establishment. I would imagine he’ll have little difficulty adjusting to his new position, or at least no more than anyone else taking up the job. He has been mixing with justices and others in positions of power for many years.

Columns: Noting that Chief Justice Rehnquist is facing some health issues, how do you think Roberts’s confirmation, or non-confirmation, will affect a resulting nomination to fill his vacancy?

Dupre: I am sure the White House will be watching the Roberts proceedings closely to see how best to proceed if there is another vacancy. If Roberts is not confirmed (which I think is highly unlikely) or has a very rough ride, it may make a difference the next time around. It might mean the president would try to nominate a candidate who would slide through easily. On the other hand, it could galvanize some to try to push through a candidate who would be even more distasteful to the Roberts detractors.

Spiro: George W. Bush will almost certainly have another slot to fill on the court. The Roberts nomination makes it more likely that he will go with a woman or diversity appointment for his second nomination.