Editorial Roundup for Saturday — October 08, 2005

• The Roberts era begins


The Roberts era begins

St. Louis Post-Dispatch, Sunday, Oct. 2, 200

For all the excited and dire predictions that surrounded the confirmation of Chief Justice John G. Roberts Jr., the Roberts court begins on Monday with much that is the same. The eight other justices were there in June when the court recessed, although Sandra Day O’Connor is expecting to retire soon.

The biggest issues confronting the court echo from past terms: abortion, religious freedom, federalism, the right to die and campaign finance reform.

And despite Chief Justice Roberts’ success at keeping his views a cipher, the new chief justice can be expected to vote very much as did his mentor, the late Chief Justice William H. Rehnquist. Justice Roberts clerked for Justice Rehnquist when he was an associate justice.

Even though many liberal and abortion-rights groups strongly opposed Chief Justice Roberts’ confirmation, the most likely place for him to deviate from Chief Justice Rehnquist is on abortion. Chief Justice Roberts may feel bound by the abortion precedents in a way that Chief Justice Rehnquist was not as an original dissenter in Roe v. Wade. In the most optimistic scenario, that means that the current court could vote 7-2, rather than 6-3 to affirm the constitutional right to an abortion.

Nevertheless, on many divisive abortion issues, such as laws against “partial-birth” abortions, the current court is divided 5-4 with the departing Justice O’Connor one of the five.

Because Justice O’Connor was part of the five-justice majority on other issues as well, such as religious freedom and affirmative action, it is her replacement, not Chief Justice Rehnquist’s, who could move the court to the right.

That’s why Democrats are pressuring President George W. Bush to nominate someone within the mainstream of judicial thought. Democrats have threatened to filibuster those whose track records are on the extreme right, such as appeals court judges Janice Rogers Brown, Priscilla Owen or William Pryor.

The Rush Limbaugh crowd says bring ’em on. They point to the ambivalence of Democrats, who split 22-22 on Chief Justice Roberts’ confirmation. But the president would be foolish to pick this fight.

The president should not appoint someone guided by partisanship or ideology, but an independent thinker with a keen intellect, sound judicial temperament and a demonstrable commitment to justice and equality. President Gerald Ford’s choice of John Paul Stevens and President Bill Clinton’s choice of Stephen Breyer come to mind.

That would be the best contribution that the president could make to the goal that Chief Justice Roberts set for himself at his swearing-in: keeping America’s charter for self-government “as strong and vibrant” as when he inherited it.

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