Editorial: Put Roberts to the test

Wednesday, Sept. 7, 2005 | 8:57 a.m.

The death of Chief Justice William Rehnquist on Saturday triggered a rapid change in President Bush's nomination of John Roberts to the U.S. Supreme Court. Roberts' nomination was made in July after Justice Sandra Day O'Connor announced her intention to retire as soon as a replacement was confirmed, and after Rehnquist announced that he planned to remain on the court despite his failing health. Roberts' nomination, although not bitterly controversial, has nevertheless stirred concern on the part of Democrats because O'Connor has often been a voice of moderation. Neither conservatives nor liberals could reliably predict how she would view an issue and hers became the swing vote on many issues. Replacing her with someone of Roberts' conservative background was tantamount to removing the swing vote, Democrats feared. On Monday, however, Bush switched his nomi nation, recommending that Roberts replace Rehnquist as chief justice instead of O'Connor as associate justice.

With Republicans in control of the Senate, Roberts' confirmation to replace O'Connor had been fairly certain. But if he earns confirmation now to replace Rehnquist, all that will happen is that one conservative will be replaced by another conservative. Rehnquist, nominated by President Richard Nixon, joined the court in 1972 and became chief justice in 1986 when President Ronald Reagan chose him to replace the retiring Warren Burger. As associate justice, he supported the death penalty, opposed Roe vs. Wade and was a strong advocate for most conservative positions. As chief justice he set a conservative tone for the court. Bush and other conservatives are counting on Roberts to do the same.

On Monday the Senate begins a hearing that will lead to confirmation or rejection of Roberts' nomination. It might be tempting now for Democratic senators to think of a Roberts confirmation as a wash, and prepare for a more exhaustive review of whomever Bush nominates to replace O'Connor. But we believe that would be a mistake. Other than opinions expressed in memos written while serving as a lawyer in the Reagan administration, not much is really known about the legal disposition of Roberts. What is mostly heard about him is that he is smart, pleasant, conservative and a warm-hearted family man. Much more should be known about a man who will set the tone of national jurisprudence for the next two, possibly three, decades.

Democrat and Republican senators alike should thoroughly question Roberts and take their time about it. Thoughtful, probing questions about current issues and past Supreme Court decisions will reveal Roberts' views about the role of government in the lives of individual citizens. A rushed proceeding would allow for this view to be revealed -- but only after Roberts assumes his lifetime position as chief justice.