Justices Likely to Reconvene With No Word on Nominee - New York Times

Justices Likely to Reconvene With No Word on Nominee - New York TimesOctober 3, 2005
Justices Likely to Reconvene With No Word on Nominee
By DAVID STOUT

WASHINGTON, Oct. 2 - The Supreme Court opens its 2005-6 term on Monday with a new chief justice and amid speculation that President Bush is close to choosing someone to fill a second vacancy on the court.

Mr. Bush planned to go to the court on Monday for the ceremony installing John G. Roberts Jr. as chief justice of the United States. The president and the chief justice attended a religious service honoring the legal profession on Sunday, and Mr. Bush declined afterward to comment on his second Supreme Court nomination, to succeed the retiring Justice Sandra Day O'Connor.

But the president's chief of staff, Andrew H. Card Jr., said that Mr. Bush was "still working, still considering lots of options." Justice O'Connor has said she will serve until her successor is confirmed.

Cases involving abortion, religion, free speech and the death penalty are among those to be considered in the new term. This week, the justices will hear arguments on an Oregon law that authorizes physician-assisted suicide. It is the only such law in the country and has led to intense debate on legal and religious grounds.

Also on Sunday, Justice Stephen G. Breyer predicted that over the next 10 to 15 years, the court would grapple with issues involving privacy and free expression in the age of computers and surveillance cameras.

"Remember, 100 or 150 years ago, you could walk down the street, your neighbors might see you, they'd watch what you do," Justice Breyer said on "This Week With George Stephanopoulos" on ABC.

"But the wonderful thing about human memory is, it forgets," Justice Breyer went on. "And so you always have another chance. People don't remember after a time. The computer remembers forever. There it is: picture recorded."

Justice Breyer joined Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy, as well as Chief Justice Roberts on Sunday at the annual Red Mass at the Cathedral of St. Matthew here. The Mass, named for the scarlet robes worn by the priests, is celebrated on the Sunday before the Supreme Court begins its term. Mr. Bush attended for the first time, according to Cardinal Theodore E. McCarrick's welcoming remarks.

In his homily on the need for greater civility in public life, Cardinal McCarrick invoked a parable of workers in a vineyard. "These are the times of challenge when the wine growers need to work together," he said. "We tend to blame each other, and the level of our discourse can sometimes become shrill and caustic and uneven."

"What happens in the vineyard can happen to us in our public life," the cardinal said. "We must be careful that we do not bring damage to the vineyard and harm to the wine growers."

Cardinal McCarrick said last week's Senate confirmation of Chief Justice Roberts was an example of civility in public life. But whether the debate over the next nominee will be equally civil is by no means clear.

The new chief justice is considered a conservative, like the man he succeeds, the late Chief Justice William H. Rehnquist. Thus, the presence of Chief Justice Roberts on the court is not seen as likely to shift its balance.

But Justice O'Connor has often wielded a crucial swing vote between the court's conservative and liberal members. So if President Bush chooses an outright conservative to succeed her, some Democrats are expected to resist, especially if they see the nominee as an extremist.

President Bush originally nominated Judge Roberts, then a member of the United States Court of Appeals for the District of Columbia Circuit, to succeed Justice O'Connor. But after the death of Chief Justice Rehnquist on Sept. 3, Mr. Bush renominated Judge Roberts to succeed him.

Justice Breyer, interviewed by Mr. Stephanopoulos in connection with his book "Active Liberty: Interpreting Our Democratic Constitution," declined to say whether he thought the president should nominate a woman to succeed Justice O'Connor. For him to comment, Justice Breyer said, would be like "seeing the recipe for chicken à la king from the point of view of the chicken."

And perhaps Mr. Card's comment that Mr. Bush was still weighing his options could be viewed with a touch of skepticism. On July 18, after all, Mr. Bush declined to say whether he was close to picking a successor to Justice O'Connor. The very next day, he announced that he had chosen Judge Roberts.