The Supreme Court and the speech you’ll never hear

President Bush was faced with several possibilities when Chief Justice William Rehnquist died Labor Day weekend. First, he could go forward with the nomination of Judge John Roberts to fill the Sandra Day O’Connor seat, leaving two other vacancies, one of the nine seats and one designation of a chief justice. Conventional wisdom was that he would like to pick Justice Clarence Thomas or Justice Antonin Scalia, sitting Supreme Court justices, either of whom would have been a controversial nomination. Both are quite ideological and would have caused contentious hearings, something the president apparently wished to avoid.

Another choice faced by Bush would have been to name a chief justice from outside the existing court, but not Roberts. This would have been a major distraction if two nominees were being considered by the Senate at the same time. The last time this happened, Rehnquist and Lewis F. Powell Jr. were nominated and confirmed easily. The chief justice position was not in the offing then, however.

The option he took – substituting Roberts as the replacement for Rehnquist as chief justice and not as the nominee to fill the O’Connor seat – was politically savvy, since Roberts had received good reviews and was seen as a probable confirmee, notwithstanding all of the theater surrounding it.

Therefore it is probable that John Roberts will be chief justice and a new successor to Sandra Day O’Connor is still awaited. Speculation is that it will be a woman and perhaps a minority nominee, but Bush surprised handicappers with Roberts so until his choice is known, everything else is speculation.

Another ramification of the process as it plays out is that there will be a full court once Roberts is confirmed, O’Connor having resigned “effective with the confirmation of her successor.”

How quickly things change when people think they know what is going to happen!

The disaster surrounding Hurricane Katrina’s damage of the Gulf Coast has brought all sorts of controversy and offers of help from foreign governments, recognition of the vulnerability of human institutions and speculation about whether it is wise to build cities below sea level. It also has called into question the competence of municipal, state and federal governments.

However, minute-by-minute criticisms of a record-breaking disaster are very short on perspective. In my Walter Mitty speculation, I wonder if it would not be good to hear the following speech from the president, reacting to this disaster and all of the suffering involved:

“My fellow Americans, Hurricane Katrina has changed our perspective on many matters.

“First, to all those nations, friend and foe, who have offered us aid, we accept. It will be a great boon to world affairs to have Cuban doctors, Colombian aid workers and Australian aid dollars helping in the American Gulf Coast. We are all citizens of this Earth and appreciate the fact that the other nations of the world recognize that America has come to their aid when challenged. May this be the start of improved dialogue among all nations with whom we share this Earth.

“Second, this disaster points out our need to shepherd our resources, plan for disasters and not engage in unnecessary foreign adventures which tap our resources. Therefore, we should be more careful in engaging in military missions around the world, no matter how well intentioned, before we have planned for all of the problems we may very well have at home.

“Third, perhaps the disaster which has befallen the Gulf Coast is a warning from on high about what the ramifications of global warming would be. Not only should we do everything we can to avoid having that happen, we should prepare a response to disasters which could occur if in fact it does. Further, environmental studies about what is, as opposed to what we would like to have be, should be our guiding purpose, and science, not ideology, should be our guide in deciding future policies.

“Finally, the effect of all of this activity on the energy supplies and prices has brought home to us all how hostage we are held to energy, especially petroleum. Therefore, we must make every effort not only to build new refining capacity in the short term, perhaps on our recently closed military bases, but also to impose efficiency requirements on automobiles and other motor vehicles of all sizes, shapes and kinds, which will result in significant savings, work on alternate energy sources, energy from shale, coal, nuclear and other sources, develop other means of mass transportation, and commit to the expenditure of unprecedented sums to achieve energy independence.

“The time has come for action, not words. The time has come to follow facts and not ideology or whim.”

That may be the speech I want to hear. It is not one I think I shall ever hear.

Brad Cook is a partner in the Manchester law firm of Sheehan Phinney Bass + Green and heads its government relations and estate planning groups