University of Baltimore School of Law Dean Ronald Weich assisted Senate Democrats as they prepared in July 2005 to advise President George W. Bush on whom he should name to succeed U.S. Supreme Court Justice Sandra Day O’Connor, journalist Joan Biskupic reported in her new biography of Chief Justice John Roberts.
O’Connor had announced on July 1, 2005, that she would retire when her successor was appointed.
Weich, then chief counsel to Senate Minority Leader Harry Reid, joined other staffers in dividing into three categories the names of appellate judges they assumed would be on Bush’s list of potential nominees.
These categories were: “probably acceptable, but would face tough questioning,” “not favored, but probably would not provoke a major confrontation” and “unacceptable, would provoke a major confrontation,” Biskupic wrote in “The Chief: The Life and Turbulent Times of Chief Justice John Roberts.”
Weich stated in a July 9, 2005, memo to Reid, a Nevada Democrat, that the senators’ goal “should be to persuade the president to nominate one of the more mainstream candidates … (and) to warn the president away from nominating anyone” in the unacceptable category.
“These candidates are really right-wing zealots with plenty of smoking guns in their opinions and writings,” Weich wrote. “Your basic point to the president is: for the good of the country don’t go there.”
The three-part list was compiled for Reid and other Democratic senators who met with Bush on July 12, 2005, before he selected a nominee, Biskupic reported in her book, published last month.
A week later the president nominated Roberts – who was deemed “not favored, but probably would not provoke a major confrontation” — to succeed O’Connor.
Weich, who confirmed Biskupic’s account, said Tuesday that such consultation between a president and senators from the opposing, minority party on a Supreme Court nominee cannot happen now due to the 100-member Senate’s ill-advised elimination in 2017 of the filibuster for high court nominations.
That elimination followed the Senate’s similarly foolish removal of the filibuster in 2013 for nominees to lower federal courts and cabinet posts, Weich said.
The filibuster had enabled senators to block consideration of judicial and cabinet nominees unless a supermajority of 60 members voted to advance the nomination. Now, just 50 senators are required to secure confirmation, with the vice president casting the 51st vote in cases of a tie.
Thus, the president has little incentive to consult with the minority party before announcing a nomination, Weich said.
“The filibuster was still in place” in 2005, he added: “It was possible that there would be a filibuster.”
But “giving away the filibuster in 2013 has changed the calculus,” Weich said. “In the Trump years, it has proven to be exceedingly problematic not to have it. The Republicans are filling up positions and the Democrats have nothing to say about it.”
Roberts, according to Biskupic, was placed in the “not favored category” after the staffers debated whether he should instead be placed in the “unacceptable” category. Roberts, then a judge on the U.S. Circuit Court of Appeals in Washington, D.C., was deemed acceptable, in part because of support from his Democratic attorney friends from when he was a partner at the law firm Hogan & Hartson, Biskupic reported.
Roberts’ nomination to succeed O’Connor was amended after Chief Justice William H. Rehnquist succumbed to thyroid cancer on Sept. 3, 2005. The following day, Bush nominated Roberts to be the next chief justice.
The president subsequently named Samuel A. Alito Jr., a judge on the 3rd U.S. Court of Appeals, to succeed O’Connor. Alito, like Roberts, had been on the “not favored, but probably would not provoke a major confrontation” list, according to Biskupic.