Analysis

Roberts's Personal Skills and Political Savvy Seen as Assets

Trevor Raffeo, 19, participates in the prayer vigil  in front of the Supreme Court by the National Clergy Council, Faith and Action and the Christian Defense Coalition. The round-the-clock vigil is asking for God's guidance over the confirmation hearings for John G. Roberts Jr.
Trevor Raffeo, 19, participates in the prayer vigil in front of the Supreme Court by the National Clergy Council, Faith and Action and the Christian Defense Coalition. The round-the-clock vigil is asking for God's guidance over the confirmation hearings for John G. Roberts Jr. (By Melina Mara -- The Washington Post)
By Charles Lane
Washington Post Staff Writer
Tuesday, September 6, 2005

On Chief Justice William H. Rehnquist's Supreme Court, Justice Antonin Scalia has been the acknowledged intellectual leader of the conservative bloc, a brilliant writer and legal thinker with many followers in legal academia.

Yet when it came time to replace Rehnquist as chief justice, President Bush did not tap Scalia, 69, as some conservatives had hoped. Rather, he reached outside the court and selected John G. Roberts Jr.

Roberts, 50, is not only younger than Scalia, but also mellower, a former law clerk of the easygoing Rehnquist. Roberts became known for his astute political judgments in the Reagan administration and his cordial personal relations with many liberal attorneys during his years as a Supreme Court advocate. In a role in which he will have few means of forging majorities other than persuasion and tact, that could make Roberts an effective force for conservatism on the court.

"A committed conservative with interpersonal skills equal to or superior to Rehnquist's would be a far more effective chief justice than a nominee of equal intellect who lacks those graces," said David J. Garrow, a professor of law at Emory University.

Historians have often labeled different eras at the court for the chief justice who presided at the time. Yet whereas the chief justice runs oral argument and closed-door conferences, he has only one vote and few formal means of control over the court. Rehnquist himself once likened leading the Supreme Court's eight associate justices to controlling "hogs on ice." The court's nominal boss, he said, "may at most persuade or cajole" his independent-minded colleagues.

Thus, the Warren Court's jurisprudence probably owed as much to the thinking and interpersonal skills of Justice William J. Brennan Jr. as it did to the ideas of Chief Justice Earl Warren. Sandra Day O'Connor, an appointee of President Ronald Reagan who often found herself unable to agree with Scalia, was the controlling force of the Rehnquist Court.

Probably the chief justice's principal power is the right to assign the writing of opinions for the court when he is in the majority. Rehnquist was known for the fairness with which he distributed opinions among the associates -- especially in contrast to his predecessor, Warren E. Burger, who often generated ill will by manipulating the process.

Rehnquist also prevented the court's conferences from turning into prolonged debates, which had often led to delays and personal feuding at the court earlier in the 20th century.

Instead, Rehnquist's policy was that every justice would speak at least once, to announce his or her vote and view of the case, before anyone would be allowed to raise an objection.

The Burger period was a time of notorious internal bickering at the court, which Roberts saw first-hand as a law clerk for Rehnquist -- then an associate justice -- during the 1980-1981 term.

As chief justice, Rehnquist would sometimes join a majority he probably did not agree with, so as to reserve the opinion-writing for himself and thus limit the damage to his own legal preferences. But he would also take his share of less-glamorous assignments, such as tax and Indian law cases.

As a young aide in the Reagan administration, Roberts was an advocate of conservative policy positions -- but also a keen student of politics and the media who frequently counseled his superiors how to achieve their objectives without ruffling feathers.


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