Court TV Host: Jami Floyd is here!

Court TV Host: Welcome, Jami, good to have you back with us online!

Jami Floyd: hello all. hope everyone had a nice summer...

Question from ctv_warhorse2: Tell us some more background on Justice Rehnquist. Is Judge Roberts record anything like Justice Rehnquist's?

Jami Floyd: Great question, especially in light of the answer. Both have/had extraordinary legal credentials. Top of their classes in college, top of their classes in the top law schools (Roberts/Harvard - Rehnquist/Stanford). Just getting into those places is damn near impossible, let alone finishing at the top of the class. Both had considerable political experience, and both are/were regarded as all-round regular guys. The kind of guys you'd want to have a beer with, rather than what you'd expect -- a stuffy Supreme Court justice-type. All that being said, Roberts is less problematic than Rehnquist was when Nixon appointed him in 1971. Rehnquist was asked about restrictive covenants he had against blacks and Jews on his property. He was asked about writing he'd done suggesting that Brown v. Board of Education (that ended segregation in the public schools) was wrongly decided. Roberts has written far less, and most of what he's written has been has been in the role of an advocate, rather than as a scholar or judge. And he can argue that he was only doing his job representing a client, rather than expressing his own views. So, thus far, Roberts is a less controversial nominee than was his boss, but many are saying he reminds them of a young Rehnquist.

Court TV Host: If he's confirmed, it will apparently be the first time in history that a Supreme Court justice will be succeeded by one of his own clerks?

Jami Floyd: That's absolutely right. Only about a half dozen former clerks have been nominated to the court, and none to fill the shoes of someone they'd clerked for. And think about this: if he'd been confirmed and taken his seat before Rehnquist died, it would have been the first time in history that a justice and his former clerk were seated at the same time. Lots of trivia for ya!

Question from ctv_warhorse2: If you were on the Senate Judiciary committee, what question would you ask Judge Roberts?

Jami Floyd: The key question: bigger than abortion, bigger than affirmative action, bigger than any of the hot button issues is:

Court TV Host: (Drumroll, please...)

Jami Floyd: What respect he has for the role of precedent -- cases already decided by the us supreme court is the key question. Ha ha. Okay, it may not sound that controversial, but that is the ultimate question. If he respects the cases already decided, then he won't vote to overturn Roe v. Wade. He won't act to change the laws on affirmative action or civil rights. He will judge going forward only, on new issues presented. THAT is the issue the special interest groups should be asking about -- not whether he is personally opposed to abortion or the death penalty.

Question from Julie-NH: Why are so many worried about Roberts overturning Roe V. Wade?

Jami Floyd: Well, there are several answers. First of all, the Supreme Court isn't bound by precedent. Even though the justices may have varying views on the role earlier cases should play, the Supreme Court can always -- and has in some momentous decisions -- overturned well-established constitutional cases. So roe is not sacred. It's not written into the Constitution, and it's always been vulnerable. Number two: (and I'll admit right here and now that Roe is a case that I, as a woman and a lawyer struggle with) Roe is not a well decided case. To give women the right to choose to have an abortion, the court had to rely on something it called the "penumbra" of the right to privacy in the Constitution. That means they relied on a right not expressly written into the Constitution. Or as conservatives would say, they made one up to give women the right to an abortion. And number three, and the cynical answer, special interest groups may be less interested in defeating Roberts than they are in using this as an opportunity to beat their drum on the issue of choice. So there are many reasons.

Question from kiara: Jami, how much more difficult would it have been to appoint Roberts as chief justice if he was already accepted as regular supreme court justice?

Jami Floyd: That actually wouldn't have worked for President Bush at all. Let's say the hearings had started today and Rehnquist died even part way through the hearings, or shortly after Roberts took his seat. The president would have been (as he is now) under tremendous pressure to fill the CHIEF'S seat. But at the same time O'Connor would be out of the mix. This way he can fill the chief's seat, with O'Connor agreeing to stick around until HER replacement is found., The only one who loses is Scalia (the conservatives' favorite possible pick and long thought to be in line for the chief's seat, though not by me :))

Question from kiara: Jami, has the process for selecting sc justices evolved over the years?

Jami Floyd: Absolutely, and as it's evolved it's become more political. If you go back a hundred years or so, they sometimes didn't even HAVE confirmation hearings. When william o'douglas was up for a seat, he went up to the Hill to wait to meet with the senators. After waiting about an hour, he got rather angry (notorious temper) and demanded to know when they would see him. A note came out telling him to go home and they would just confirm him in the morning. No questions asked. Nothing. It's really since the controversial Brown v. Board decision -- desegregating schools -- that presidents began to seriously consider a nominee's views and that has led to more and more contentious hearings and a process that has become longer and more political. The only thing in the Constitution that is required is for the congress to "advise and consent" on the presidents judicial appointments. But what that means, we make up as we go.

Question from kiara: After Roberts, who is the next likely nominee by Bush?

Question from Julie-NH: JAMI...Do you think Bush will replace the other Supreme Court seat with a woman?

Jami Floyd: I do think there is tremendous pressure to nominate a woman or Latino (or other non-African American person of color) to the court, especially after the appointment of Roberts (who, in case you are wondering is white and male). My guess is Edith Clement. She was at the top of the list last time around -- when Roberts was first nominated for the O'Connor seat. a woman to replace a woman makes more sense now than even then. And she's from New Orleans -- which would help the president with his PR problems there since Katrina.

Question from kiara: Jami, why do you say....other non-African American?

Jami Floyd: Well, there is already one black person on the court. So if he's looking to make the court more diverse, more like America, he'd nominate an Asian (though none are on the short list) or a Latino (the fasted growing ethnic group in America). I actually think it's sad that we still think in term of a candidates race and/or gender but I guess we really haven't come that far. And for the President there are political realities (not for him since he's a lame duck) but for his party, if he overlooks major constituencies like women and Latinos.

Question from moonman: Do you think that there will be greater opposition to Roberts, or will public interest groups save that for the NEXT nominee?

Jami Floyd: If they're smart they'll hold off until there is really something to shout about. Don't get me wrong -- I think we, and they, have every right to raise hard questions about any candidate. But there are political realities for these groups just as for President Bush. If this guy isn't confirmed, who do they think they're going to get? President Bush is a far-right conservative. More so than his father. Influenced heavily by the religious right. So there is no big fat surprise that he would nominate a conservative to the court. Given the choices, this guy is not bad. he's conservative, without doubt. But he has expressed an abiding respect for the Constitution, the role of previous cases (think Roe v. Wade) and a love of the law and our democracy. Add to that the fact that his amazing credentials. So if he goes down, they should be thinking about who they might get instead. They could get two hard-core right wingers instead of the one that Bush is likely to appoint to replace O'Connor. and that's the fight they should be gearing up for.

Court TV Host: Thanks, Jami -- it's good to have you back -- and we'll see you again next week, Monday, to talk more about the Court and John Roberts' confirmation hearings.