MAYBE IF THERE HAD BEEN NO KATRINA, and if the Iraqi occupation were proceeding as Pentagon optimists had once envisioned -- with the few thousand remaining U.S. troops in the country lolling about in the dozens of Starbucks cafes popping up across Mesopotamia by now -- President Bush would have
tried elevating Antonin Scalia or Clarence Thomas to serve as the chief justice of the United States. But under present conditions, Bush doesn't need any more trouble than he already has. And so, in the wake of William H. Rehnquist's death, the president has wisely nominated John G. Roberts Jr., a former Rehnquist law clerk, to become the next chief justice.
It's a smart move. Roberts has the intellect and temperament to lead the court and the federal judiciary. It's somewhat counterintuitive that newcomers to the court usually become the chief -- Rehnquist was an exception -- but that tends to preserve good relations among the nine justices. The elevation of either Scalia or Thomas would have proven highly contentious and divisive in Washington, and maybe even on the court.
The Senate confirmation hearings for Roberts' nomination to replace retiring Justice Sandra Day O'Connor had been slated to commence today, but there will now be a short delay to honor Rehnquist. But there is no reason for the Senate to avoid taking action well in advance of the Supreme Court's new term on Oct. 3. The suggestion by some Democratic senators that they will need more time to review Roberts' credentials now that he is in line to be chief justice rings hollow. Yes, the chief justice wields a great deal of subtle power by virtue of his authority to control arguments and assign the writing of opinions, but it's not as if anyone was taking the confirmation of an associate justice lightly.
In their questioning of Roberts, senators should focus special attention on his views on the proper deference that courts owe the executive branch in a time of war. Roberts was on a panel of the U.S. Court of Appeals for the District of Columbia that ruled in July that the Bush administration has virtually unchecked power to try anyone it labels an "unlawful combatant" before a military commission that does not live up to the standards of the Geneva Convention. The extent of presidential power in the war on terror is likely to loom large in the Supreme Court docket for years, and it's a subject that Roberts, a former White House lawyer, should be asked to address in his hearings.
Meanwhile, the president faces a second opening on the court, although O'Connor could still be on the bench on Oct. 3 if her replacement hasn't been confirmed. Many of the candidates reportedly being considered earlier by the White House are radical conservatives who could trigger the kind of opposition we haven't seen to Roberts. Then there is the president's friend and attorney general, Alberto Gonzales, who is not trusted by social conservatives and should be disqualified, in any case, for encouraging the administration to disregard international law in conducting the war on terror.
So, mindful of Bush's other headaches, from Katrina to Iraq, he'd be well served by making another sensible move (is there a surprise candidate up his sleeve?) in replacing O'Connor.