Senate to Commence Hearings on Roberts

John G. Roberts Jr. ’76 will face the Senate Judiciary Committee on Capitol Hill today, marking the start of the first confirmation hearings for a Supreme Court justice in 11 years. If confirmed by the full Senate, Roberts will become both the 17th Chief Justice of the United States as well as the first graduate of Harvard College or Harvard Law School (HLS) to serve as chief justice.

After opening statements and several days of questioning Roberts, the Judiciary Committee will hear 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 are to be called.

However, Beneficial Professor of Law Charles Fried, a former Solicitor General, will be a witness. When reached for comment, Fried referred The Crimson to his written testimony, which is not available at this time.

Roberts’ re-nomination follows the unexpected death on Sept. 3 of former Chief Justice William H. Rehnquist, who holds a masters degree from Harvard. Roberts was previously tapped to replace retiring Supreme Court Justice Sandra Day O’Connor.

AN EASY CONFIRMATION?

Although his nomination as chief justice was applauded by Republicans and looked upon with apprehension by many Democrats, experts agree that barring some shocking revelation, Roberts’ confirmation is all but assured.

IBM Professor of Business and Government Roger B. Porter, with Roberts in both the Reagan and Bush administrations, spoke highly of his former colleague.

“He is a remarkable individual in many dimensions,” Porter wrote in an e-mail. “In meetings his contributions are invariably on point. He has that wonderful quality when he disagrees with someone of not being disagreeable. His first instinct is to clarify and understand the relevant facts in addressing an issue and then to think through the consequences from a variety of vantage points. Everyone whom I knew liked him, in part because they liked his clarity and judgment, in part because of his wit and humor, in part because he is one of those people who are genuinely likeable.”

Porter said he believes that given these qualities, the man he saw as a young government lawyer will make a top-notch chief justice.

“Cases that reach the Supreme Court often involve some of our most challenging public policy issues,” Porter said in an e-mail. “John Roberts’ background, experience, mind, and temperament make him a superb choice to sit on and to preside over our nation’s highest court.”

Even Harvard’s cadre of well-known liberal law professors do not seem to be lashing out against Roberts. Although a group of 159 law professors sent a letter to the Judiciary Committee opposing Roberts’ confirmation, only one HLS professor, Wasserstein Public Interest Professor of Law Elizabeth D. Bartholet ’62, actually signed the letter. When contacted by The Crimson, Bartholet declined comment.

Most HLS professors said that, although they do not personally agree with Roberts’ judicial philosophy and views, they expect Roberts will make a good justice. Tyler Professor of Constitutional Law Richard H. Fallon Jr. echoed those sentiments.

“Roberts is obviously a brilliant lawyer, and everything that I have read suggests that he is a man of excellent character,” Fallon wrote in an e-mail.

ROBERTS RULES

By switching Roberts’ nomination from associate to chief justice, Bush aims to have nine justices on the bench when the Supreme Court’s term starts on Oct. 3.

Warren Professor of American Legal History Morton J. Horwitz said the change of Roberts’ nomination from associate to chief justice would not make the confirmation more difficult.

“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.”

Despite a lofty title, the chief justice holds a single vote on the Court. He does, however, possess 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.

“There is also a sense among the Justices that the chief justice is at least first among equals and deserves a special hearing when trying to forge a consensus on divisive issues,” Fallon wrote in an e-mail. “Not every chief justice succeeds in putting a personal stamp on the Court, but the chief justice has a better chance of doing so than any of the other Justices.”

The chief justice also has a variety of duties outside the Supreme Court. He 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.”

Last week, as the president announced the re-nomination from the Oval Office with the nominee at his side, Bush praised Roberts and Rehnquist, for whom Roberts clerked after finishing 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 John Marshall, then just 45 years old, in 1801. Roberts also has relatively little experience on the bench, having served as an appeals court judge for just three years and written only 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 also worked 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 have come out against him.

NEXT IN LINE

If Roberts gets confirmed, Bush will next have to choose another replacement for O’Connor—and two distinguished lawyers with Harvard ties are said to be at the top of Bush’s short list.

Some speculate that the most consequential nomination for the court will in fact be the justice who replaces O’Connor, who was generally regarded as the swing vote that will determine the future direction of the Court.

“Swapping Roberts for Rehnquist thus leaves the Court’s ideological balance pretty much intact,” Fallon wrote in an e-mail. “O’Connor was pretty conservative, but she was right in the center of the Supreme Court on which she served.”

The first of the two Harvard alums being considered to replace O’Connor 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 with Harvard connections 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.who worked