- The Washington Times - Thursday, September 29, 2005

Chief Justice John Roberts, 50, was sworn in yesterday at the White House by Justice John Paul Stevens following a 78-22 Senate confirmation, thus becoming the youngest chief justice since John Marshall was confirmed in 1801. His answers during the confirmations hearings suggest that Justice Roberts will be at least as conservative as his predecessor, the late William Rehnquist, which means that President Bush has preserved the court’s ideological balance. However, depending on what sort of jurist Justice Roberts ends up being could shift the court in either direction, though not dramatically so. For instance, if we take Justice Roberts’ “umpire” metaphor to be an accurate description of how he will judge cases, then conservatives have little to fear.

While the Republicans voted unanimously for confirmation, Democrats split evenly. Considering that there was almost nothing in Justice Roberts’ past or in his confirmation answers remotely controversial, it can now be assumed that whomever Mr. Bush nominates to replace Associate Justice Sandra Day O’Connor, 22 Democrats have already decided how they will vote. That is, of course, assuming Mr. Bush nominates anyone to the right of Justice Ruth Bader Ginsburg. The president, we hope, doesn’t need to be reminded of the implications regarding his next choice, which he should make under the more realistic assumption that all 45 Democrats or almost all (including independent Jim Jeffords) will be opposed.

With that in mind, the president must ignore all calls to nominate a “moderate.” Those 22 senators notwithstanding, the Democrats’ strategy all along has been to give Mr. Bush at least one nominee, lest they appear as obstructionists. The good news is that Mr. Bush doesn’t need any Democratic support. For all the talk of the so-called “Gang of 14” — the bipartisan alliance of moderate senators, who in theory can decide the fate of a nominee — the White House needs only the support of 50 Republicans. That’s because, if the Democrats do filibuster, Vice President Cheney can cast the deciding vote to invoke the nuclear option. In this case, at least two Republican members of the Gang of 14 would have to support the president’s choice. This is the worst-case scenario, to be sure, but indicative of the fact that, in the end, the president still has the upper hand.

As we have stated repeatedly, it is incumbent upon Mr. Bush to use his second nomination — an extremely rare opportunity for any president — to name an unapologetic conservative — someone who won’t simply preserve balance, but will tip it significantly to the right. Anything less would constitute a betrayal to those who twice voted Mr. Bush into office, gave him a majority in the Senate and sustained the majority in the House.


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