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Bush nominates Roberts as C.J.; Rehnquist remembered

WASHINGTON (BP)–President Bush Sept. 5 nominated John Roberts to be the nation’s next Supreme Court chief justice, moving quickly to fill the void left by the death of William H. Rehnquist.

A staunch conservative, Rehnquist had served as the nation’s chief justice since 1986, but died Sept. 3 after a battle with thyroid cancer. Bush nominated Roberts earlier this summer to fill the void left by the retirement of Sandra Day O’Connor. But with Roberts now set to succeed Rehnquist, Bush must find another replacement for O’Connor, who has said she would serve until a nominee is confirmed.

If confirmed Roberts would be the nation’s 17th chief justice. The Senate Judiciary Committee was scheduled to begin confirmation hearings Sept. 7 but has delayed them until Monday, Sept. 12. Rehnquist’s funeral will be held Wednesday, Sept. 8.

Bush said he hopes to see Roberts confirmed by the Senate before the court begins its new term in October.

“The passing of Chief Justice William Rehnquist leaves the center chair empty just four weeks left before the Supreme Court reconvenes,” Bush said in an announcement with Roberts by his side. “It is in the interest of the court and the country to have a chief justice on the bench on the first full day of the fall term. The Senate is well along in the process of considering Judge Roberts’ qualifications. They know his record and his fidelity to the law. I’m confident that the Senate can complete hearings and confirm him as chief justice within a month.”

Bush said he would fill O’Connor’s seat in a “timely manner.”

Roberts served as a law clerk under Rehnquist in the early 1980s. Rehnquist was nominated by President Nixon to be associate justice and served in that role from 1972-86. Pro-family groups considered Rehnquist –- a dissenter in the infamous Roe v. Wade case that legalized abortion — to be an ally.

“I’m certain that Chief Justice Rehnquist was hoping to welcome John Roberts as a colleague, and we’re all sorry that day didn’t come,” Bush said. “Yet it’s fitting that a great chief justice be followed in office by a person who shared his deep reverence for the Constitution, his profound respect for the Supreme Court, and his complete devotion to the cause of justice.”

Rehnquist had been undergoing treatment for thyroid cancer since October. It had been expected he would retire after the court ended its term in late June. O’Connor announced her retirement July 1. Amid speculation Rehnquist still planned to leave the court, the chief justice said in mid-July he had no plans to retire.

During his more than 33 years on the Supreme Court, Rehnquist gained recognition as a conservative who believed the Constitution should be interpreted as to its original intent and judges should not act as legislators.

“Judges usually fall into two categories -– trees, which can both grow and bend with the changing winds of society, and pillars, which don’t grow and don’t bend,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “Pillars just stand for truth and justice and the U.S. Constitution as they perceive it, regardless of whether they are in the minority or the majority or whether the editorial pages of The New York Times and The Washington Post approve of them.

“From the beginning of his service on the Supreme Court, Chief Justice William H. Rehnquist was a pillar,” Land told Baptist Press. “When he was a lonely figure urging judicial and federal restraint or in later years when there was more support for his conservative, federalist views, Chief Justice Rehnquist was a pillar.”

Alan Sears, president of the conservative Alliance Defense Fund, said in a written statement, “The passing of this truly honorable man causes us to pause and thank God for his faithfulness.

“Chief Justice Rehnquist consistently countered efforts to make the law rather than interpret the law, particularly as a dissenter in Roe v. Wade,” Sears said. “He demonstrated integrity by adhering to constitutional terms rather than searching for ‘penumbras’ and concepts outside the parameters of the Bill of Rights.”

Rehnquist demonstrated this trait as one of only two dissenters in the 1973 Roe opinion, which was issued only a year after he joined the Supreme Court. In that decision, Associate Justice Harry Blackmun wrote that a right to privacy found in the Fourteenth Amendment included the decision to have an abortion.

In Roe, the court’s majority “had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment,” Rehnquist wrote in his dissent.

“The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment,” Rehnquist wrote.

After President Reagan promoted Rehnquist to the court’s top post, it twice appeared the chief justice had marshaled a majority to strike a death blow to Roe.

In 1989, he circulated four draft majority opinions that attacked Roe in the Webster v. Reproductive Health Services case, according to the papers of Associate Justice Thurgood Marshall. O’Connor initially was in the majority but changed her mind before the ruling was announced, The Washington Post reported. O’Connor supported restrictions in the Missouri law but refused to endorse the attack on Roe.

In 1992, Rehnquist also circulated a majority opinion undermining Roe in Planned Parenthood v. Casey. This time, Associate Justice Anthony Kennedy changed his mind, according to the papers of Associate Justice Harry Blackmun, the author of Roe. Associate Justice David Souter joined Kennedy and O’Connor in writing an opinion that upheld some Pennsylvania limitations but reaffirmed Roe, The New York Times reported.

Rehnquist “consistently voted to allow elected lawmakers to decide when and how to protect unborn” babies, said Douglas Johnson, the National Right to Life Committee’s legislative director, in a written release. “Millions of pro-life Americans mourn” his death.

With Rehnquist’s death, the high court has only two justices remaining who have indicated their opposition to Roe. They are Associate Justices Antonin Scalia and Clarence Thomas.

Among the major, 5-4 opinions Rehnquist wrote for the court were:

— Boy Scouts of America v. Dale, a 2000 decision in which the court ruled the Boy Scouts had the right to bar open homosexuals from leadership posts.

— Zelman v. Simmons-Harris, in which the justices decided in 2002 that Ohio’s school voucher program did not infringe on the First Amendment’s ban on government establishment of religion.

— Van Orden v. Perry, a 2005 ruling in which the court decided a Ten Commandments display on the grounds of the Texas capitol did not violate the establishment clause.

Rehnquist’s wife, Natalie, died in 1991.

Roberts, who as an attorney argued nearly 40 cases before the high court, called his nomination to be chief justice a “special opportunity.”

“I am honored and humbled by the confidence that the president has shown in me,” he said. “And I’m very much aware that if I am confirmed, I would succeed a man I deeply respect and admire, a man who has been very kind to me for 25 years.”

Said Land: “Soon after John Roberts was nominated to succeed Associate Justice Sandra Day O’Connor, I began to wish that John Roberts could have been nominated for chief justice. The more I discovered about John Roberts, the more he reminded me of Chief Justice Rehnquist in judicial philosophy, in collegial temperament and in giving every indication of being a pillar rather than a tree. I believe that Judge Roberts has the judicial philosophy, depth of conviction and collegial temperament to be a great chief justice of the United States Supreme Court.”

Jay Sekulow, chief counsel of the conservative American Center for Law and Justice, called the nomination of Roberts as chief justice a “welcomed decision.”

“With his judicial philosophy of interpreting the Constitution instead of legislating from the bench, John Roberts will set a tone that will resonate with the American people as the high court tackles some of the most challenging issues of the day,” Sekulow said in a statement. “I have known John Roberts for nearly 20 years and worked with him on cases at the Supreme Court and I believe his selection to succeed Chief Justice Rehnquist is an extraordinary move.”
— With reporting by Tom Strode.

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