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Toobin: Roberts a young nominee for a chief justice

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CNN senior legal analyst Jeffrey Toobin

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NEW YORK (CNN) -- President Bush moved quickly Monday to fill the U.S. Supreme Court vacancy left by the death of Chief Justice William H. Rehnquist Saturday. Bush nominated federal Judge John Roberts to the nation's top judicial post.

American Morning anchor Miles O'Brien talked with CNN senior legal analyst Jeffrey Toobin on the ramifications of nominating a relatively young judge as chief justice. Roberts is 50.

The following is an edited transcript of their discussion:

O'BRIEN: Jeff, good to have you with us. First of all, opportunity here for George Bush. Roberts is a young man who will -- assuming he stays healthy -- he could be there 30 years.

TOOBIN: One of my favorite aspects of this story is that we all keep talking about a 50-year-old man as how young he is. But it is true, by Supreme Court standards, 50 years old is very young.

And, you know, here's this guy with those little kids that we have seen so frequently, and he's going to be there, as we all know, life tenure. And on the Supreme Court, life tenure means life tenure.

His senior colleague, John Paul Stevens, will be 86 years old this year. So that's 36 years that John Roberts, if, as he's likely to live, you know, he could serve on that court.

O'BRIEN: You mentioned John Paul Stevens. That might have been part of the White House calculus in getting this decision out quickly because he, as the senior associate justice, would assume the administrative responsibilities of William Rehnquist, the chief, after his passing.

So do you think they were concerned about having a liberal having that authority?

TOOBIN: Potentially for a little while, but I think mostly they were just concerned about getting their people there. One of the reasons people run for president is to name Supreme Court justices. It is a tremendous legacy that a president can have, and that's why they have put so much effort into this search. And now they will have two spaces to fill.

O'BRIEN: So now you have an outsider coming in to herd the cats here, so to speak. And, you know, Rehnquist got high marks, unlike his predecessor, Warren Burger, for fostering this great sense of collegiality, making the trains run on time there for the court.

You have a new person coming into that. And you've had a chance -- you've spent a lot of time with Justice Anthony Kennedy and would have some insights on how he might be received in that role of being the boss.

TOOBIN: You know, the Supreme Court is an institution that cares deeply about itself and its own traditions. And, they really have their own traditions of collegiality and reverence for the institution.

John Roberts is the part of the institution. He clerked on the court. He argued 39 cases. He worked in the solicitor general's office, which is sometimes called the office of the 10th justice, the people who appear so frequently by the court.

He's someone who the justices know. In my piece in The New Yorker [titled "Up Close and Personal with Anthony Kennedy"], Justice Kennedy said to me that Roberts was a marvelous oral advocate. You know, "We feel like we know him." That's going to stand him in very good stead in a court that takes knowing each other very seriously.

O'BRIEN: So he has their respect. It seems as if he has the proper demeanor to foster that sense of collegiality, which is apparently so important.

TOOBIN: I think the demeanor is very important. You know, it sounds funny to say it, but he looks like a chief justice.

He is not a person of wild mood swings, emotions. He does not have in his history great loud partisanship for one way or the other. He's scholarly, he's very knowledgeable about the law.

I think he will fit into the institution very well. But Justice Byron White said something that many justices have quoted over the years. He said, "When you change one justice, you don't change one justice, you change the whole court."

The dynamics always change. And especially now.

Remember, these nine had been together for 11 years, the longest that one court had ever been together since there were nine justices. So here you're going to have two justices this fall changing, and the dynamics will almost certainly change. And the collegiality, which you talked about, and is certainly real, will it maintain? Maybe yes, maybe no.

O'BRIEN: So this decision to upgrade John Roberts seems like a good move. Actually, when you think about it, it seems like, really, given all else that's going on right now, really the only move.

TOOBIN: President Bush has a long to-do list at the moment, longer than he's probably ever had in his presidency. He crosses off a very big item here with, it seems to me, likely very little controversy. And that's a big advantage for him.

A little controversy, but big gain, because John Roberts is likely to be very conservative. That's what President Bush wants. But he's likely to get on the court with relatively little controversy.

O'BRIEN: And when you say that, it should be fairly -- I mean, we've been saying all along he's got a fast track to confirmation. That doesn't change by this announcement this morning, right?

TOOBIN: I don't think so. Although the timing is interesting.

The hearings were supposed to start tomorrow afternoon. They probably won't start, I would suspect, until Thursday at the earliest, because Chief Justice Rehnquist's funeral is now scheduled for Wednesday. So it will be delayed a couple of days.

But, you know, the first Monday in October is about just a month away. They have a little bit of time to give. I don't think there's any way an associate justice can be confirmed in that time.

Certainly either Sandra Day O'Connor will remain on the bench or there will be a vacancy. But the court has dealt with that before. But it looks like Roberts will be there.

O'BRIEN: All right, Jeff Toobin. The piece is out today.

TOOBIN: Correct.

O'BRIEN: The New Yorker: "Up Close and Personal with Anthony Kennedy."

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