The Roberts (Re)Nomination: A Short Term Tactical Ploy

JB

President Bush's nomination of John Roberts to be Chief Justice is a shrewd short-term political move from a President who has repeatedly demonstrated a mastery of short-term political tactics. If Roberts were confirmed, the Court would remain with nine Justices because O'Connor has promised to stay on until her successor is confirmed. Moreover, it would ensure a conservative Chief Justice, instead of having the most senior Justice, John Paul Stevens, exercising day to day administrative control and making opinion assignments. (Although this is a marginal consideration, it is not completely unimportant).

Switching Roberts to Rehnquist's spot also means that a staunch conservative replaces a staunch conservative, rather than a swing Justice like O'Connor. This might make Roberts’ confirmation marginally easier, particularly when Bush's political capital has been debilitated by the combination of the fallout from Hurricane Katrina, problems with Iraq, a weak economy and rising gas prices. Given that Bush still wants to pursue an ambitious second term agenda, he needs to expend as little political capital as possible now. He is calculating that confirming Roberts as Chief might allow him to give his conservative base a relatively easy victory with relatively high salience because of the symbolic importance of the position of Chief Justice.

Perhaps most important, Bush puts off for a few days, or perhaps even a few weeks, an even more difficult choice: who will replace Justice O'Connor as associate Justice. Bush will face renewed calls to appoint a woman or a minority for this slot, and his base will demand that a Justice far more conservative than O'Connor replace her in order to swing the Court further to the right. All of the same issues that Bush faced when he originally nominated Roberts will reemerge, but with heightened concern on the part of the left and the right. That is because Rehnquist's slot, which might have become vacant a few years down the road will now have been filled for several decades with an equally solid conservative. Hence filling O'Connor's slot becomes the major avenue for altering the Court's direction in the foreseeable future.

To be sure, Bush is no doubt contemplating that John Paul Stevens may also die or retire in the next three years, which would give the President an even more profound influence on the future direction of the Supreme Court and American constitutional law. But that decision is not yet before him; the decision about O'Connor is before him, and he knows that this is his best shot. The problem for Bush is that everyone else knows it too. And that means that the fight over O'Connor's slot threatens to be even more contentious than before if Bush makes a mistake.

In sum, Bush’s decision to switch Robert’s to the Chief Justice slot is prompted by short-term tactics. But it may have long term repercussions.