By a vote of 78 to 22 the Senate confirmed John G. Roberts to be the Chief Justice of the United States Sept. 29. All of the Republican and half of the Democratic Senators voted for him.
Three hours later at a White House ceremony Roberts took the oath of office from Justice John Paul Stevens, the most senior member of the Court and regarded by many as its most liberal.
On Monday, Bush tapped longtime ally Harriet Miers, 60, White House counsel, to replace Justice Sandra Day O'Connor. Miers has never been a judge.
Liberal groups had argued vehemently against Roberts' confirmation, but in the end they were able to convince only half the Democratic Senators, and not even all liberals, that he should not be confirmed. All of the likely presidential candidates in 2008, realizing the strength of those groups within the Democratic primaries, voted no.
As The Los Angeles Times said in an editorial, 'Too many Democrats beholden to liberal interest groups embarrassed themselves and the party by opposing Roberts. These groups wield disproportionate power in mobilizing activists and raising campaign funds, but they do not speak for the majority of Americans or even most Democrats.'
'We are disappointed that John Roberts was confirmed without being required to demonstrate a clear commitment to fairness and equality for all Americans,' said Kevin Cathcart, executive director of Lambda Legal.
That organization had proposed a list of 30 questions for Roberts to answer during the confirmation process. Many of them were asked by friendly Senators and a few were even answered to Lambda's satisfaction. But it eventually came to oppose Roberts' confirmation.
'What was remarkable about the Roberts hearing was how prominently LGBT civil-rights questions figured into the proceedings overall—it was unprecedented,' Cathcart said. 'And it sets a great standard looking forward to the next nominee.'
Joe Solmonese, president of the Human Rights Campaign, said, 'With a Chief Justice who's been given a stamp of approval by the extreme right wing, it's critical that the next Justice preserve a fair and balanced Court.'
Roberts was in the center chair, presiding over the Court when the fall session opened Oct. 3. Other than his presence, there was little to draw a crowd. Oral arguments dealt with whether hourly workers should be paid for the time it takes to put on mandatory protective gear and whether the State of Kansas can tax gas sales on an Indian reservation.
But on Oct. 5, the Court is scheduled to hear arguments on Oregon's 'right-to-die' act, which allows terminally ill persons to be assisted in ending their own lives. Then Attorney General John Ashcroft had asserted that drugs used for that purpose are controlled substances, and use for assisted suicide is not authorized under the Controlled Substances Act. However, off-label use of drugs is a well established part of medical practice. The appeal before the Court is known as Gonzales v. Oregon.
On Dec. 6 the Court will hear oral arguments on the first gay-related issue, Rumsfeld v. Forum for Academic and Institutional Rights. The case involves the right of law schools to prohibit military recruiters on campus because they discriminate against gays. A lower court ruled as unconstitutional the federal law, commonly known as the Solomon Amendment, which would force the law schools to assist the recruiters.
The law schools are asserting the principles of free speech and association, while the government is arguing that any imposition is minor, that it has a right to determine the conditions under which federal money is spent, and that maintenance of an army is a principal responsibility of the federal government.
Miers nominated
President George W. Bush announced the nomination of Harriet E. Miers to the U.S. Supreme Court Oct. 3, shortly before the Court convened for the opening session of its fall term. If confirmed, she would succeed Justice Sandra Day O'Connor.
Bush described her as having 'earned a reputation for her deep compassion and abiding sense of duty … . [ She ] will strictly interpret our Constitution and laws. She will not legislate from the bench … . I've known Harriet for more than a decade. I know her heart. I know her character.'
Miers, 60, is a lifelong resident of Dallas who attended Southern Methodist University and its law school. Her father suffered a massive debilitating stroke and she only returned for her sophomore and subsequent years through scholarships and work study programs, graduating in 1970. She clerked for federal Judge Joe E. Estes for two years before beginning legal practice.
Miers broke ground in the legal profession where she was the first woman to be elected president of both the Dallas ( 1985 ) and the Texas ( 1992 ) bar associations. In 1996 she became the first woman to be named a managing partner of a major Texas law firm.
She was elected to the Dallas City Council in 1989 but politics did not seem to suit her, and facing impending obligations as president of the Texas Bar, she chose not to run for reelection.
Then-Gov. George Bush appointed her as chairman of the Texas Lottery Commission in 1995. She joined the White House staff in 2001, serving in a number of positions. Her present job is as legal counsel to the President, as successor to now Attorney General Alberto Gonzales.
She has never been married, which often is fodder for speculation about sexual orientation. And if confirmed, she would serve with lifelong bachelor Justice David Souter.
Miers has never served as a judge. There is no prerequisite of such service and the late Chief Justice William Rehnquist had not served in that capacity prior to being confirmed to the Supreme Court.
Miers does not have the paper trail of legal decisions or law review articles that ideologues of both the left and the right have pawed over to assess whether the nominee is worthy of their blessing or opposition.
Both ends of the political spectrum are grumbling about the appointment, though they aren't quite sure why, except for the lack of certainty as to what the nomination means to them.
Social conservatives had wanted a red meat conservative in the mold of Justices Scalia and Thomas and they did not get one. They fear 'another Souter,' a stealth nominee who ends up being a moderate, and they are less likely to accept Bush's guarantee that Miers is conservative enough for them.
Some conservatives are likely to be upset by a 1998 American Bar Association report from a committee that Miers chaired, which ' [ s ] upports the enactment of laws and public policy which provide that sexual orientation shall not be a bar to adoption when the adoption is determined to be in the best interest of the child.'
More revelations similar to that could mean that Miers faces harsher questioning from the right than from the left.
GLBT groups were unanimous in pledging a full review of Miers' record and that hearings should ascertain her ability to be fair on questions of equality for gay Americans.
Lambda Legal asserted, 'The burden is on Harriet Miers to demonstrate that she is qualified to serve on the Supreme Court.'
The White House said it has spoken with more than 80 Senators about the nomination, and that Senate Democratic Leader Harry Reid had suggested considering Miers. The Senator later said that while he has great respect for Miers, he is reserving judgment on the nomination.
Gay conservative blogger Andrew Sullivan, disenchanted with Bush on a number of issues, labeled the pick 'cronyism.'
The blog www.rawstory.com, which has tried to revive the practice of 'outing,' rushed to chastise Miers for serving on the board of Exodus Ministries, charging that the group 'deprograms' gays. OOOPS, wrong Exodus. The antigay group is Exodus International. The group that Miers supports works with ex-offenders and their families.
