Bush Nominates Roberts for Chief Justice

President George W. Bush nominated John G. Roberts Jr. ’76 to be the 17th Chief Justice of the United States Monday. If the Senate confirms him, Roberts will become the first graduate of Harvard College or Harvard Law School (HLS) to serve as chief justice.

The re-nomination follows the unexpected death on Saturday of former Chief Justice William H. Rehnquist, who held a masters degree from Harvard. Roberts had already been tapped to replace retiring justice Sandra Day O’Connor. His confirmation hearings, the first in 11 years, were set to begin tomorrow, but have been delayed.

By switching Roberts’ nomination from associate justice to chief justice, Bush is hoping to have nine justices on the bench when the Supreme Court’s term starts on October 3. O’Connor has agreed to stay on until she is replaced.

"He thrives on challenges and I have no doubt this is precisely where he wants to be," said Robert N. Bush '77, Roberts' roommate at Harvard for three years. "Few people who study history are destined to influence it as he may."

Both the president and Senate Republicans said today they planned to hold hearings on Roberts as soon as possible, beginning either this Thursday or next Monday after Rehnquist’s funeral, so that he can be confirmed by October. Some Democrats, however, say they need more time because a chief justice nomination is different from that of an associate justice.

But Warren Professor of American Legal History Morton J. Horwitz said that the confirmation is not dramatically different.

“At the symbolic level the chief justice represents the Supreme Court on ceremonial occasion,” Horwitz said. “So the chief justice has a larger potential public voice. But if I were a senator it would not fundamentally change my vote if he were nominated to be an associate justice or chief justice.”

The chief justice is often said to be “first among equals” because, despite his lofty title, he only holds a single vote on the Court. However, he does hold several additional powers, both practical and ceremonial, the most important of which is the ability to choose which justice will write an opinion when the chief votes with the majority. This is particularly important because the chief justice can shape precedent by joining with the majority, when he might have voted otherwise.

The chief justice selects judges to serve on various judicial committees, including the Foreign Intelligence Surveillance Court, often called the “wiretap court.” Beyond that, the chief justice holds a variety of other duties, including presiding at impeachment hearings, swearing in the President, and chairing the Judicial Conference of the United States, the top administrative body of the federal court system.

Horwitz said that although the chief’s additional powers are important, they are not as great as they first seem.

“We measure time in terms of presidencies and chief justiceships,” he said. “This exaggerates the role of the chief justice in history. For instance, the Rehnquist court had a lot of aspects who were not just Chief Justice Rehnquist.”

Today, as the president announced the nomination from the Oval Office with the nominee at his side, he praised both Roberts and Rehnquist, for whom Roberts clerked after law school.

“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,” Bush said.

“I am honored and humbled by the confidence that the President has shown in me,” Roberts said as he accepted the nomination. “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.”

If Roberts is confirmed, he will be, at age 50, the youngest chief justice since John Adams, Class of 1755, nominated 45-year-old John Marshall in 1801. Roberts also has relatively little experience on the bench, having served as an appeals court judge for just three years and written 47 opinions. But Horwitz said that what is so unique, historically, about the Roberts nomination is his lack of prior political activity.

“Most Supreme Courts were not populated by people who spent a lot of time on the judiciary,” he said. “They were mostly political appointments. Most chiefs have come from off the court rather than on the court. In the past, the Chief Justice was often a fairly substantial politician like Governor Earl Warren or John Marshall, who was Secretary of State. Someone with so little political or judicial standing has rarely been appointed to the chief justiceship.”

Roberts has experienced a meteoric rise to the top since he arrived at Harvard in the fall of 1973. He graduated summa cum laude in History in just three years and went on to graduate magna cum laude from HLS while serving as the Managing Editor of The Harvard Law Review. He went on to clerk for Circuit Judge Henry Friendly and Rehnquist, when Rehnquist was an associate justice on the Supreme Court.

Roberts went on to work in the Justice Department, serving as Deputy Solicitor General—one of the government’s main lawyers before the Supreme Court—and later had a private practice. By the time President Bush appointed him to the D.C. Court of Appeals in 2002, Roberts had argued 39 cases before the Supreme Court and was known as one of the finest appellate litigators in the land.

Since he was tapped for O’Connor’s seat in July, Roberts has managed to weather the grueling scrutiny typical of a Supreme Court nomination. Thousands of documents have been released from government archives, and Roberts was given the highest rating of “well qualified” by the American Bar Association. Although several liberal interest groups voiced their opposition, no senators came out against him and many experts said that, barring some revelation during confirmation hearings, Roberts’ confirmation was all but assured.

But now that he has been nominated to chief justice, his candidacy will likely become more contentious. Immediately after the announcement, Democrats and Republicans alike came out divided over the timing of the hearings.

“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,” Bush said at the announcement. “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.”

Senate Majority Leader Bill Frist, R-Tenn., echoed Bush’s sentiments, saying that "the President has made an excellent choice; Mr. Roberts is one of the most well qualified candidates to come before the Senate. He will be an excellent chief. I still expect Judge Roberts to be confirmed before the Supreme Court starts its new term on Oct. 3."

However, Sen. Edward M. Kennedy ’54-’56, D-Mass., who serves on the Judiciary Committee, said that the Senate would need more time.

“Before the Senate acts on John Roberts’ new nomination, we should know even more about his record, and we should know whom the president intends to propose to nominate as a replacement for Sandra Day O’Connor,” he said. “The American people care deeply about the overall balance of their highest court, and its dedication to the protection of their rights.”

Had the hearings progressed as scheduled this week, the Judiciary Committee would have heard from Roberts and 30 other witnesses, 15 called by each party. Due to the desire of top senators to have a speedy confirmation hearing, no character witnesses who knew Roberts as a student were to be called. However, Beneficial Professor of Law Charles Fried, a former Solicitor General, was slated to be a witness.

With Rehnquist’s seat filled, Bush will now have to choose another replacement for O’Connor, and two distinguished lawyers with Harvard ties are said to be at the top of his short list.

The first is Attorney General Alberto R. Gonzales, who received a degree from HLS in 1982. Gonzales, who previously served as White House Counsel, has long been a close friend and confidant of the president. The son of Mexican immigrants, Gonzales grew up in a poor household that did not even have a telephone until he was in high school.

However, groups on both sides of the political spectrum oppose Gonzales. Right-wing groups want a stronger conservative to replace O’Connor, and many liberals object to some of his work as Attorney General and White House Counsel, which included taking part in discussions justifying the torture of prisoners.

The other potential nominee is Learned Hand Professor of Law Mary Ann Glendon, who has been on the faculty at HLS since 1986. Loeb University Professor Laurence H. Tribe ’62 told the Crimson in July that Glendon “would be an inspired if unlikely choice.”

A noted legal scholar, Glendon teaches classes on human rights, legal theory, and comparative law, and has authored several books, including “Abortion and Divorce in Western Law.” A devout Catholic, she has been appointed to several positions by the Vatican including heading the Vatican delegation to the Fourth U.N. Women's Conference in 1995.

“Mary Ann is an extraordinary scholar, teacher, and colleague,” HLS Dean Elena Kagan said in July. “She makes Harvard Law School a better place every day she's here, and she would be hugely missed if she were to leave us for the judiciary.”

—Staff writer Adam M. Guren can be reached at guren@fas.harvard.edu