January 3, 2020
If the Speaker of the House, Nancy Pelosi, ever decides to deliver the Articles of Impeachment to the U.S. Senate for trial, America is going to get a rare opportunity to see a Chief Justice of the U.S. Supreme Court at work.
U.S. Supreme Court proceedings are not televised. In 1999, America watched as Chief Justice William Rehnquist presided over the impeachment trial of President Bill Clinton. Television was still about 70 years off into the future when Chief Justice Salmon P. Chase presided over the impeachment trial of President Andrew Johnson.
Maybe, in the not-too-distant future Chief Justice John Roberts Jr. may be under the spotlight, figuratively and literally, presiding over the impeachment trial of President Donald Trump.
On Jan. 27, 2020 Chief Justice Roberts will be 65-years-old. He was nominated by President George W. Bush, and confirmed by the Senate 78-22, becoming only the 17th chief justice in U.S. history.
Roberts was born in Buffalo, New York and attended Harvard University and Harvard Law School. After law school he clerked for Justice Rehnquist - the man he would ultimately replace on the court.
Although Roberts is considered a conservative he has served as a key swing vote on divided rulings. For instance, he voted with the liberal side of the court in upholding key provisions of Obamacare, but sided with the conservatives in opposing same-sex marriage.
Roberts faces his responsibilities in the impeachment with some trepidation. First, the chief justice and the president have had public disagreements about the role of the courts. According to the New York Times, in 2018, Trump called a judge who had ruled against his administration’s asylum policy “an Obama judge.” In response, the chief justice said the president had misunderstood the role of the federal courts in the constitutional system.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
Trump replied on Twitter, “Sorry Chief Justice John Roberts, but you do indeed have Obama judges ... and they have a much different point of view than the people who are charged with the safety of our country.”
Last week, Roberts gave his annual end of the year report. While hailing the rule of law he ominously wrote, ”(W)e should also remember that justice is not inevitable.”
The limits of justice come into clear focus with the recent statements of two GOP senate leaders. Senate Majority Leader Mitch McConnell and Sen. Lindsey Graham have said they will not be impartial jurors during the impeachment trial. McConnell is coordinating with the White House about a trial strategy and Graham has also given input. “I’m not an impartial juror,” McConnell told reporters, according to CNN.
Roberts may have to deal with those statements in the context of Article I of the U.S. Constitution, which provides that every senator must take the following oath before trying an impeachment case:
“I solemnly swear or affirm that in all things appertaining to the trial of the impeachment of the president now pending, I will do impartial justice according to the Constitution and laws; so help me God.”
Justice Roberts may have to decide if there is a difference between being “an impartial juror,” and doing “impartial justice according to the Constitution.”
Roberts may also be called upon to decide whether the Senate can conduct a trial without the Articles of Impeachment from the House? And, once trial begins, can the Democrats subpoena witnesses to appear before the Senate?
The American people may get a chance to see, and hear, a lot from the chief justice in the coming weeks.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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