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The Standard for Selecting a Chief Justice

JD Lock, Lieutenant Colonel, US Army (Retired)

21 September 2005


The Senate hearings are complete and, soon, votes will be cast for or against Judge John Roberts' confirmation as the next Chief Justice of the United States.  Recently, Senator Ben Nelson, (D, Nebraska) remarked, "I've not seen anything that would cause me to vote against [Roberts' confirmation]."  Sadly, I find the senator’s observation to be a pitifully revealing statement that serves as an expose as to why our nation is so sorely lacking in leadership—and common sense—these days.  Obviously, the senator—as do many of his fellow Congressional members—fails to realize that the selection of a chief justice should be predicated on those characteristics of a nominee that would make one vote for his confirmation, not against it.


To ascertain that there is no reason “to vote against” anything is to establish the most mundane of selection criteria which leads to mediocrity.  In terms of an analogy, the good senator would have us believe that the confirmation of a United States Supreme Court nominee, much less the Chief Justice, is akin to the NFL’s instant reply review.  In Nelson’s ‘world,’ President George W. Bush, has made the call on the field by nominating Judge Roberts.  As a referee, Nelson has ducked under the hood and watched the instant reply on the sidelines.  Having “not seen anything” definitive in the replay (ie. confirmation hearings), he has determined that he cannot overturn the ruling on the field.  Thus, Bush’s call on the field, Judge Roberts’ nomination, should stand. 


My question of Senator Nelson is, “If the best you can say about Judge Roberts is that you have ‘not seen anything that would cause [you] to vote against [him],’ why should that be construed as a vote for confirmation?”  Need I remind the good senator that no nominee has a right to the seat of Chief Justice just because he’s been nominated to fill it by the President of the United States?  A place on the United States Supreme Court is a privilege; a privilege that should be earned as the result of the nominee convincing the majority of members of the confirmation committee and the United States Senate that he/she is a worthy candidate.  It is not a privilege that is confirmed by default simply because one has “not seen anything that would cause [him] to vote against.” 


Leadership is a matter of perspective, Senator Nelson.  One does not assume the position of Chief Justice is anointed by the president and that the nominee is successfully confirmed because nothing has been seen that would cause you “to vote against.”  As a United States Senator, you should clearly understand that the position of Chief Justice has to be earned.  Hence, it is your job to find those characteristics that makes a nominee worthy of such an esteemed position.  Failing to find such characteristics should result in your stating, “I’ve not seen anything that would cause me to vote for.” 


Judge John Roberts has been nominated to succeed the late William H. Rehnquist as Chief Justice of the United States.  It is a life long appointment that only sixteen before have had the distinct pleasure of experiencing.  The United States Senates’ standards must require—no, must demand—that it evaluates a nominee’s confirmation based on why that nominee should be confirmed, not on why he should not be.  If the characteristics ‘for’ a nominee lack weight, substance or leave doubt, it is in the people’s best interest not to confirm. To confirm simply because “I’ve not seen anything that would cause me to vote against” is a contemptible abrogation of those responsibilities.

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