Supreme Court Buzz

As virtually all of our readers must know by now, President Bush has nominated Judge John Roberts to fill the vacancy left by the death of Chief Justice William Rehnquist. Judge Roberts' confirmation hearing has been delayed until Monday due to the state of emergency caused by Hurricane Katrina and the new circumstances of Roberts' nomination. Some are opposing this new nomination on the grounds that Judge Roberts is not qualified to be Chief Justice of the United States, since he has only served a short time on the federal courts and since he has never before served on the Supreme Court.

Although it was delayed for a while by Hurricane Katrina and her aftermath, the Supreme Court buzz has started up again in earnest. David Schrader (Catholics in the Public Square) is reporting that conservative Catholic historian and theologian George Weigel has written an open letter to Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, urging him "to insure that Catholic-bashing, overt or subtle, does not spill over into the Judiciary Committee's deliberations."

In his open letter, Weigel returns to the theme of American Catholics as an oppressed minority, even though three of the nine Supreme Court justices are Catholic. If Judge Roberts is confirmed, there will be four Catholics on the court; if President Bush nominates another Catholic (there are five or six of them on his short-list) and that person is confirmed, there will be five Catholics on the Supreme Court, giving Catholics a majority on the court. I think Weigel is going to have a difficult time making the "Catholics as oppressed minority" argument with rational human beings who know anything about the make-up of the Supreme Court.

As usual, Weigel has made opposition to the Roberts nomination all about Roe v. Wade, in an attempt to frame the opposition as imposing a religious litmus test on Roberts, who seems to oppose Roe v. Wade on religious grounds. As I pointed out on August 4, opposition to the Roberts nomination isn't all about Roe v. Wade. Many liberals are also concerned about Roberts' narrow interpretation of the Constitution's Commerce Clause, which could turn the entire federal government upside down and mightily upset all Americans -- liberal, conservative, or moderate. Many civil libertarians are additionally concerned about a controversial ruling in which Judge Roberts allowed problematic trials at Guantanamo Bay to continue in the face of evidence that the detainees are being denied their rights to fair trial and due process. These concerns have nothing to do with Judge Roberts' Catholic faith; in fact, a case can be made that his faith should have guided him to rule in the opposite manner in the Guantanamo case.

I guess what I'm trying to say is that Weigel's attempt to make this all about Roe v. Wade and a religious litmus test is disingenuous. It's not that simple. For my part, I think I would have ultimately been okay with Judge Roberts as an associate justice on the Supreme Court -- as our readers know, I refused to take a position either way until the beginning of the confirmation hearings. But I'm uncomfortable with Judge Roberts as Chief Justice of the United States. I don't believe he has the judicial experience necessary, and I think it was a bad decision for President Bush to make. I think a Roberts Court could reshape the Supreme Court in ways that we're only just beginning to imagine, and I don't think we're going to be headed in a positive direction. I do, however, think he's going to be confirmed. So I'm not going to waste time and energy on opposing his confirmation.

A more troubling prospect, perhaps, is the still pending replacement of Associate Justice Sandra Day O'Connor. Judge Roberts, a conservative, will now be replacing Chief Justice Rehnquist, also a conservative. But there will be a lot of pressure on President Bush to once again nominate a conservative to replace Justice O'Connor, in the hopes of changing a variety of judicial precedents which include Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey. As I mentioned, there are five or six Catholics on President Bush's short-list. I believe that President Bush will nominate someone from his Catholic short-list, and I'm leaning toward Judge Edith Brown Clement or Attorney General Alberto Gonzales. Both are quite conservative, although it's likely that the White House would try to depict Gonzales as a moderate.

This concludes your Supreme Court Buzz update. As always, we'll be keeping you informed as new developments occur.

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