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Friday, September 09, 2005
Hamdan case moved along
06:48 PM | Lyle Denniston | Comments (0) | TrackBack (0)
The Supreme Court is moving along at a faster-than-usual pace the constitutional challenge to the war crimes tribunals set up by President Bush to try war-on-terrorism suspects. Even though all filings in the case are not yet in, the Court has scheduled the case for consideration at the first Conference of the new Term, on Sept. 26, according to the Court's docket. The case is Hamdan v. Rumsfeld, docket 05-184. (As of Friday, all cases that will come up at the Sept. 26 Conference have been designated.)
The Hamdan case involves the so-called "military commissions" that have been assigned the task of trying several foreign nationals now being held at the Navy prison camp at Guantanamo Bay, Cuba. The D.C. Circuit, in a ruling July 15 joined in by Circuit Judge John G. Roberts, Jr., upheld the President's authority to bypass the court-martial system and civilian courts.
The government's reply brief, urging the Court not to hear the appeal by Salim Ahmed Hamdan, was just filed on Wednesday. Ordinarily, a case would not be scheduled for Conference until after a reply brief has been filed. None has been filed as yet, although Hamdan's attorneys, who have tried all along to move the case expeditiously, are expected to do so early next week. Those attorneys had tried, for example, to persuade the Supreme Court to hear the case before the D.C. Circuit ruled on it; that appeal was rejected by the Court on Jan. 18.
It is now apparent that Judge Roberts, even if he can anticipate Senate approval of his nomination to be Chief Justice, will not be at work at the Court until after the initial Conference has been held. But, in any event, he would not be expected to participate in any Court action on the Hamdan case, because he has vowed to take himself out of any case that reaches the Supreme Court if he had ruled on it while on the D.C. Circuit Court.
In the government's opposition to Supreme Court review, Solicitor General Paul D. Clement argued that Hamdan's trial before a commission should be allowed to run its course without prior Supreme Court review, and that, even if he were to be convicted, many of the specific challenges he raises in his petition for review may never arise.
More broadly, Clement contended that the Court should abstain from interfering with military proceedings. Citing the 1975 decision in Schlesinger v. Councilman, Clement wrote: "As the Court has explained, the need for protection against judicial interference with the 'primary business of armies and navies to fight or be ready to fight wars' 'counsels strongly against the exercise of equity power' to intervene in an ongoing court-martial....The concern for interference with military exigencies is only heightened where, as here, the military proceedings involve enforcement of the laws of war against an enemy force targeting civilians for mass deaths."
Hamdan's appeal is supported by various amici, including the military's defense counsel in military commission cases. His appeal, that brief contended, "raises systemic issues that challenge the military commission system's very existence. These issues affect every military commission case and will persist regardless of the outcome of [Hamdan's] particular case."
That brief adds: "The central constitutional defect in the system's creation is that the Executive Branch's unilateral prescription of the commission procedures and the substantive law the commissions apply violates the central principle of our federal government's structure: the separation of powers."
Mark Tushnet on Democratic Senators' Advice and Consent Options
04:41 PM | Marty Lederman | Comments (0) | TrackBack (0)
Over at Balkinization, Mark Tushnet has a very interesting post entitled "Why Democratic Senators Should Vote 'No' on Roberts."
Political Deputy Named
03:37 PM | Tom Goldstein | Comments (0) | TrackBack (0)
Greg Garre of Hogan & Hartson, who recently was an Assistant to the Solicitor General, has been named the Political Deputy Solicitor General.
ML adds: In addition to working in the appellate litigation section at Hogan & Hartson, and now becoming Deputy Solicitor General, Greg Garre clerked for Chief Justice Rehnquist and served as one of his pallbearers earlier this week. Beginning to sound familiar? There are important distinctions, however: In particular, Greg has guest-blogged on SCOTUSblog (as part of our Beef Act dialogue last Term), whereas John Roberts has not done so . . . yet.
And while we're on the subject . . . the Library of the first Bush Administration has released some White House Counsel's office files from when the first President Bush was considering John Roberts to be the political Deputy SG. They can be found here and here. As one might expect, there's nothing too surprising in them. The most revealing fact about Roberts's application for the job, for instance, might be that whereas he worked an average of 70 hours a week clerking for Judge Friendly and for Justice Rehnquist, he thereafter averaged "only" 60 hours a week when working for the AG and at the White House Counsel's Office. Also, in response to the standard-issue application question "Why are you seeking this position?," Roberts responded with a simple, and refreshingly unadorned: "To serve my country."
More on Padilla
12:55 PM | Marty Lederman | Comments (0) | TrackBack (0)
Following up on Lyle's extremely helpful summary of today's Padilla decision, I've added a few tentative thoughts about the case over on Balkinization.
Blog Round-Up - Friday, September 9th
11:56 AM | Liz Aloi | Comments (0) | TrackBack (0)
Rick Hasen of Election Law Blog has these predictions for Justice O'Connor's replacement.
The Manhattan Institute's site, Point of Law, is hosting this online discussion between Richard Epstein and Stephen Presser on the Supreme Court nominations.
Slate has this article on why judicial philosophies really matter, particularly in light of the damage cause by Hurricane Katrina.
Here is Underneath Their Robes with an update on Justice Rehnquist's memorial service.
Justice at Stake has this site tracking interest group TV ads in the Roberts confirmation battle.
Here is William Stuntz writing in the New Republic Online on the politics surrounding Roberts' confirmation. PrawfsBlawg comments on the piece here.
Padilla's detention upheld
09:40 AM | Lyle Denniston | Comments (4) | TrackBack (0)
The Fourth Circuit ruled Friday that President Bush's power to order the detention of suspected terrorists extends to seizures of U.S. citizens inside this country. The ruling against Jose Padilla is directly contrary to a victory Padilla won in the Second Circuit -- a decision set aside for procedural reasons by the Supreme Court in 2004. As of now, therefore, there is no conflict in the Circuit Courts on the issue. Even so, the Padilla case seems likely to go on to the Supreme Court and to gain review there.
The decision in Hanft v. Padilla (Circuit docket 05-6396) is a significant victory for the Bush Administration in the war on terrorism because it extends to the homefront a power that the Supreme Court had upheld so far only when used to hold a citizen/terrorist suspect captured on a foreign battlefield. That is not a sufficient difference to help Padilla's challenge to his designation as an "enemy combatant" and his resulting prolonged detention, the Circuit Court said. "We can discern no difference in principle" between a designated combatant captured abroad and inside the U.S., according to the opinion. "The locus of capture" is not decisive, it said.
The ruling, however, did not go as far as the Administration had asked. The Court did not rely upon the President's claim that he has "inherent authority" as Commander in Chief to order the designation and detention of terrorist suspects. Rather, it relied only on the resolution Congress passed in the immediate aftermath of the terrorist attacks of Sept. 11, 2001, authorizing the President to respond. The Supreme Court similarly avoided the "inherent authority" claim when it upheld detention of citizens captured in foreign battle zones in its decision in Hamdi v. Rumsfeld -- so far, the only other case of detention of a citizen named as an "enemy combatant."
The Circuit Court commented: "Like Hamdi, Padilla associated with forces hostile to the United States in Afghanistan....And, like Hamdi, Padilla took up arms against United States forces in that country in the same way and to the same extent as did Hamdi....Because, like Hamdi, Padilla is an enemy combatant, and because his detention is no less necessary than was Hamdi's in order to prevent his return to the battlefield, the President is authorized by the AUMF [Authorization for Use of Military Force Joint Resolution] to detain Padilla as a fundamental incident to the conduct of war."
The panel also relied upon the Supreme Court's 1942 decision in Ex parte Quirin, saying that decision had upheld the arrest and prosecution of a U.S. citizen who was a Nazi and thus an "unlawful enemy belligerent" during World War II.
The new Circuit Court ruling, decided unanimously by a three-judge panel on an expedited basis, was written by Circuit Judge J. Michael Luttig, often metnioned as a possible nominee to the Supreme Court. It was joined without additional comment by Circuit Judges M. Blane Michael and William B. Traxler, Jr.
Continue reading "Padilla's detention upheld" »
Thursday, September 08, 2005
John Roberts's Refusal to Defend Federal Statutes in Metro Broadcasting v. FCC
05:36 PM | Marty Lederman | Comments (5) | TrackBack (0)
The Washington post reports today that John Roberts was the point person in the Office of the Solicitor General in 1990 when that office decided not to defend the constitutionality of federal statutes that required minority preferences in broadcast licensing in Metro Broadcasting v. FCC. (In fact, Roberts was the Acting Solicitor General for purposes of the case, because Kenneth Starr had a conflict.) In a post over at Balkinization today, I explain why the case raises very interesting questions about the circumstances under which the Department of Justice will refrain from defending the constitutionality of federal statutes, and about why the unique circumstances of this particular refusal to defend a federal enactment might be very revealing of Judge Roberts's personal views on the constitutionality of affirmative action -- views that presumably are not shaped by any constitutional philosophy of original intent or of plain (or original) meaning.
Hamdan Amicus Briefs
11:14 AM | Tom Goldstein | Comments (0) | TrackBack (0)
Amicus briefs are coming in for the Hamdan Gitmo detainees case. Here is a brief by more than 300 members of the U.K. and E.U. Parliaments. Here is a brief by retired U.S. generals and admirals filed by David Remes of Covington & Burling.
UPDATE: There are several more amicus briefs and the full collection is being hosted here at Georgetown.
Wednesday, September 07, 2005
Not the usual solemn proceeding
07:54 PM | Lyle Denniston | Comments (1) | TrackBack (1)
Washington likes to do state funerals in the grand manner: big church, deep solemnity, soaring music, weighty homiletics. Of those, the funeral service of Chief Justice William H. Rehnquist on Wednesday had only the church and the music: it was largely a family affair, filled with chuckles and some hearty laughs -- capped by granddaughter Natalie Ann Rehnquist Lynch saying: "To us, he was Gramps."
Even the majestic chorus from Handel's "Messiah" was sung, not for its richness, depth or historic meaning, but because it was a personal favorite of Bill Rehnquist: for 50 consecutive years, he had made it a point to go to a "Messiah" performance every December.
Rehnquist would have appreciated the delicious irony at the opening of the service. Here it was, the seat of Roman Catholicism in Washington, the Cathedral of St. Matthew the Apostle, a breathtakingly beautiful and holy place, but it was a plain Lutheran service (Rehnquist's faith preference) and the first hymn was "A Mighty Fortress Is Our God," written by Martin Luther, who had started the Reformation by tacking his grievances against popes and priests to the door of the Wittenburg Church.
For a public that may have grown accustomed to the Chief Justice's reputation as a sometimes gruff courtroom superintendent, the services revealed other sides of Rehnquist: a father who offered "five bucks" to a daughter if she could remember when Queen Elizabeth I died (the daughter did -- the year was 1603), who suggested to a daughter that she should look at reflections in a window to see what cards a playing companion was holding, a man who who quizzed his children and grandchildren endlessly about arcane geography, and who sang the National Anthem so lustily that it made a strong impression on President Bush, who delivered one of the "remembrances" ("I can tell you the man loved to sing!")
One of the saddest moments in an otherwise joyous service had to do with Rehnquist and singing. His Lutheran pastor, the Rev. George W. Evans, Jr., recalled during his sermon that Rehnquist's "first warning" of the thyroid cancer that would ultimately take his life came while he was singing in church. He told Evans: "I could not achieve a range. I knew something was wrong."
A number of those who came to the lectern spoke of the Rehnquist who loved competition, and loved to bet. Justice Sandra Day O'Connor, for example, recalled: "He enjoyed making wagers about most things: The outcome of football or baseball games, elections, even the amount of snow that would fall in the courtyard at the Court. If you valued your money, you would be careful about betting with the Chief."
There was a generous sprinkling of reminiscences of the Chief's sense of humor. Justice O'Connor's recollection was perhaps the choicest: "As he was being examined in the emergency room of a local hospital in the final week of his life, the examining physician asked who was his primary care doctor. My 'dentist,' he struggled to say, with a twinkle in his eye."
The Chief, a notorious devotee of efficency, would not have appreciated the two-hour length of the service. Nor would he have been pleased with the arrival of the hearse with his coffin, some five minutes late for the service. He might not have been entirely pleased with the too-long recollections of his lawyer son, James Cornell Rehnquist, who conceded that the Chief liked nothing less than being spoken about.
Not a one of the most significant of the Chief's rulings for the Supreme Court got mentioned. There was a glancing, and somewhat sardonic reference to Rehnquist as a law-and-order Justice by his son James, who said his father had listened with tolerance to "my diatribes about practicing criminal defense under the law as he built it." And one of his daughters, Nancy Rehnquist Sears, recalled that Rehnquist from time to time would mention at the dinner table a case before the Court, only to have the children warned by Rehnquist's wife Nan about never sharing those revelations with their friends -- an admonition that the young Rehnquists thought was absurd, given the complexity of what their father had discussed.
For a politically savvy Washington crowd of about a thousand, there was a recollection of a teasing comment by the Chief that seemed to be about Bush v. Gore. Cardinal Theodore E. McCarrick, who had loaned his Cathedral for the services and showed up in his flowing scarlet habit to take part, remembered a luncheon in honor of Rehnquist in January 2001 -- "a time," the Cardinal said, '"of some interest regarding the legal system of our nation after the vote in Florida." As McCarrick walked with the Chief to the podium, "the Chief Justice told me that he was going to speak about the disputed presidential election. I was a bit worried about rehearsing this very sensitive point so soon after the election, when he announced his topic to the assembly and began, 'It was Hayes versus Tilden and the year was 1876.' "
New Circuit Justice Assignments
02:01 PM | Kevin Russell | Comments (2) | TrackBack (1)
The Court issued an order today reallocating circuit assignments among the Justices. Perhaps notably (perhaps not), Justice O'Connor's responsibility as the Circuit Justice for the Ninth Circuit was not reassigned.
Circuit Justices are responsible for ruling on certain motions arising from their assigned circuits, such as motions for extensions of time. In the case motions for a stay of execution or other motions relating to death penalty matters, the Circuit Justice ordinarily refers the motion to the Court as a whole, but takes the lead in recommending a disposition of the motion.
The order is effective immediately.
Thanks to reader Matthew J. Price for alerting us to the order.
UPDATE: For those who are curious, the only changes are shifting the Chief Justice's circuits to the 3 most junior Justices -- Breyer gets the Federal Circuit, Ginsburg gets the D.C. Circuit, and Thomas gets the Fourth Circuit.
Recent Firm Filing
01:57 PM | Kevin Russell | Comments (0) | TrackBack (0)
Yesterday, the firm filed a reply brief in Tum v. Barbor Foods, No. 04-66, which will be the first merits case to be argued in the coming Term.
Blog Round-up - Wednesday, September 7th
01:27 PM | Liz Aloi | Comments (0) | TrackBack (0)
Paul Sracic, associate professor of political science at Youngstown State University has this op-ed in USA Today arguing that, unlike questions about specific cases, inquiries about a nominee's views on stare decisis do not undermine the legitimacy of courts as neutral third parties to cases; rather, such questions may actually enhance people's respect for the third branch of government, as they become better informed about how courts operate.
The GPO has made available this website with transcripts of Supreme Court Nomination Hearings since 1971.
The First Amendment Center has put together this collection of Justice Rehnquist's First Amendment related opinions.
In the Wall Street Journal and covered on the Volokh Conspiracy, Randy Barnett asks, "Will The 'New Federalism' Survive the New Court?"
Here is BeldarBlog on Roe, Senator Specter and "superprecedents."
Underneath Their Robes has this commentary on Justice Rehnquist's funeral proceedings.
Election Law Blog has this tidbit on Justice Blackmun and judicially unmanageable standards for election rules.
Tuesday, September 06, 2005
Senate schedule for Roberts
12:39 PM | Lyle Denniston | Comments (0) | TrackBack (0)
Leaders of the Senate and of its Judiciary Committee have outlined their plans for considering the nomination of Judge John G. Roberts, Jr., to be Chief Justice. Not all of the dates are firm at this point. Senate leaders expect final Senate action in time for Roberts to join the Court by formal opening day of the new Term, Monday, Oct. 3. The schedule is subject to possible alteration, depending upon how Senate Democrats react.
One certain consequence of the schedule as it currently exists is that Roberts would not be on the Court in time for its first Conference, to consider new cases, on Monday, Sept. 26.
Today or tomorrow: President's formal nomination of Roberts sent to the Senate
Monday, Sept. 12 -- Committee hearings open, with opening statements by members and by Judge Roberts
Tuesday, Sept. 13 -- Questioning of Roberts begins
Thursday or Friday, Sept. 15 or 16 -- Committee hearings expected to conclude
Thursday, Sept. 22 -- Target date for vote in Judiciary Committee
Monday, Sept. 26 -- Target date for opening of floor debate on the nomination
Thursday or Friday, Sept. 29 or 30 -- Target dates for final Senate vote on confirmation.If approved by the Senate, Roberts could join the Court immediately, after taking two oaths.
Monday, September 05, 2005
No Roberts hearing Tuesday
08:57 PM | Lyle Denniston | Comments (0) | TrackBack (1)
The Senate Judiciary Committee apparently will not open its hearings on Supreme Court nominee John G. Roberts, Jr., on Tuesday, as has been planned. News organizations are reporting that Senate leaders have discussed beginning the hearings no earlier than Thursday, to honor the funeral services for Chief Justice William H. Rehnquist. The news stories indicated that the hearings would start no later than Monday.
It is unclear whether the White House has taken formal action to notify the Senate of the decision to nominate Roberts for the Chief Justiceship, instead of an Associate Justice's position. The Senate Judiciary Committee's website still lists the planned hearings as a review of Roberts' nomination to be an Associate Justice, and still shows Tuesday as the opening day.
(UPDATE, Tuesday morning: the Committee's website shows the hearings have been postponed.)
Court building closed two days
08:33 PM | Lyle Denniston | Comments (2) | TrackBack (0)
The Supreme Court announced Monday that its building "will be closed to all but official business" on Tuesday and Wednesday, during funeral observances for Chief Justice William H. Rehnquist.
The announcement included these details about the observances:
"Chief Justice William H. Rehnquist will lie in repose in the Great Hall of the Supreme Court of the United States Tuesday, Sept. 6 and Wednesday, Sept. 7. The public is invited to pay respects from 10:30 a.m. until 10 p.m. on Sept. 6 and from 10 a.m. until noon on Sept. 7.
"The arrival of the Chief Justice's casket at the Court at 10 a.m. Tuesday, Sept. 6, is open to press coverage...The casket will be placed in the Great Hall on the Lincoln Catafalque, which has been loaned to the Court by the U.S. Congress for the ceremony. A 1994 portrait of the Chief Justice by Thomas Loepp will be on display. After the Justices, followed by the Court staff, pay their respects, the doors will be open to the public. Pallbearers will include former law clerks to the Chief Justice...Public may line up on the sidewalk in front of the Court and will be admitted to the building via the front steps. The line will form down First Street NE, towards Independence Avenue...
"Television coverage will be provided by C-SPAN..."
Blog Round-up - Monday, September 5th
02:57 PM | Liz Aloi | Comments (0) | TrackBack (0)
In Legal Affairs, here is former Rehnquist clerk Richard Garnett arguing that the conservative principles William Rehnquist revived will guide the court for decades to come, making him one of the most dominant chief justices in American history. Kermit Roosevelt responds here, arguing that Justice Rehnquist cared more about expanding his court's power than sparking a conservative revolution.
The Volokh Conspiracy has:
This post on why the President may have chosen Roberts as Chief Justice.
This post on whether the President should nominate Janice Rogers Brown to fill Justice O'Connor's seat.
This post on a New York Times article by Linda Greenhouse that includes comments from a rare interview with Justice Souter that sheds some light about the last Supreme Court term and the health of Chief Justice Rehnquist.On the Huffington Post, Alan Dershowitz has written this entry on what he believes are the downsides of Justice Rehnquist's legacy.
Here PrawfsBlawg has a post asking "How does the unique political moment impact the SCOTUS nomination?"
Sentencing Law & Policy has this wrap-up of the summer's sentencing news, discussing the impact of the Supreme Court transitions on sentencing jurisprudence.
A webcast of an interview Ann Althouse did with Wisconsin Public Radio on the Chief Justices' passing is available here.
Supreme Court Extra has this post by a former O'Connor clerk on Justice Rehnquist's legacy. The blog also discusses Judge Roberts and the court-stripping movement here.
Here is Balkinization on Justice Rehnquist's legacy. Professor Balkin refers to this essay he wrote about greatness in Supreme Court Justices arguing that what makes Justices great in the eyes of the future is quite different from the things the President looks for (and should look for) when deciding whether to appoint them.
On a lighter note:
Underneath Their Robes has compiled the blog's past musings on Justice Rehnquist here.
The Center for Individual Freedom has published this parody on John Roberts and the Third Amendment.UPDATE:
Here is ElectionLaw Blogger Rick Hasen's predictions on a "Chief Justice Roberts, The Next Nominee, and the Ideological Balance of the Court."
Here is Professor Edward Lee of the Moritz College of Law at The Ohio State University on Justice Rehnquist and IP law.Sentencing Law & Policy also has this entry pondering the Supreme Court cert pool and arguing that there are many post-Blakely and post-Booker questions that merit the Supreme Court's immediate attention and this "head count" on the status of the votes and views of the current seven Justices.
SOC's Tenure
02:44 PM | Tom Goldstein | Comments (1) | TrackBack (0)
I see Marty's point, and understand that he's agreeing with my assessment of the reasons that Justice O'Connor might submit a revised letter of resignation effective immediately rather than returning to bench in October, but I ultimately disagree with his view that she is likely to do so.
I think that Justice O'Connor will view herself as having made a promise to the President and to the nation to continue to serve until a successor is confirmed. She could have resigned effective immediately or effective upon the start of the new term, but she didn't do either of those.
Justice Marshall did send a revised letter, but I think that reflected the state of his personal health at the time. We have no reason to believe that Justice O'Connor is unable to serve. No doubt, it will be a hardship to her and to her family, and it will be a largely empty exercise (other than her ability to vote on cert. petitions and summary reversals) given the likelihood that a new nominee will be in place before any of the decisions of the Term are issued. But as they say, "it comes with the job."
So, my bet is that Justice O'Connor will take her seat for the eight arguments of the October sitting, then (assuming the confirmation of her successor goes smoothly) will be gone by the November sitting.
Although Justice O'Connor's return wouldn't affect the Court's decisions substantially, it would affect the confirmation dynamic. When her resignation was originally announced, Democrats argued that there was no rush to name a successor because she could continue to serve. That is, ironically, the point Republicans will likely use to argue that the Roberts confirmation should be completed before the Senate turns to O'Connor's replacement. Democrats, in turn, will likely use the same point to slow-play the process for confirming a second nominee and to allow any opposition to build.
Is a New Nomination Necessary? What Happens to Justice O'Connor?
10:58 AM | Marty Lederman | Comments (2) | TrackBack (0)
In his statement this morning, the President announced that "I will nominate [Judge Roberts] to serve as the 17th chief justice of the Supreme Court."
Various folks in the blogosphere and elsewhere have been wondering whether a new nomination is necessary, and/or whether Justice O'Connor's resignation would become effective if and when Judge Roberts is confirmed to be Chief Justice.
A new nomination is required. The Constitution itself does not specify how many Justices will comprise the Supreme Court -- but it does expressly contemplate that there will be a "Chief Justice" who will preside (as Rehnquist did) over the trial of the impeachment of a President (art. I, sec. 3, cl. 6). Although the question is uncertain, I don't think that that constitutional provision, standing alone, would require that the position of "Chief Justice" be treated as a distinct "Office" for purposes of the Appointments Clause (art. II, sec. 2, cl. 2). Thus, perhaps Congress could have provided, for instance, that the role of Chief Justice would be rotated among the Justices (cf. Weiss v. United States, 510 U.S. 163 (1994)), or be held by the senior-most Justice (cf. 28 U.S.C. 45), or some such thing -- in which case, no separate nomination would be required.
But Congress didn't do so. Instead, it established that "[t]he Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum" (28 U.S.C. 1); and in numerous other statutes, Congress gave particular responsibilities and authorities to the Chief Justice, and a higher salary, to boot (5 U.S.C. 5332 -- $203,000 and $194,300, respectively). [UPDATE: Remainder of this and the following paragraph edited slightly.] Ever since President Washington's eighteenth-century nomination of Associate Justice Cushing to be the second (confirmed) Chief Justice, the political branches have treated these statutes (and their predecessors) as establishing a distinct office of the Chief Justice, requiring separate nomination and confirmation. That's why, for instance, President Reagan was required to nominate Justice Rehnquist to be Chief Justice in 1986, rather than simply "assigning" him to that spot. (Earlier, Justices White and Stone also were separately nominated to be Chief Justice.)
It is possible that these statutory provisions -- especially the increase in salary and the substantial additional functions of the Chief Justice under modern statutes -- constitutionally require a separate nomination, i.e., that the statutes establish a distinct "Office" of Chief Justice for purposes of Article II, thus requiring the President to nominate (and the Senate to confirm) persons to that particular office. See generally Weiss; Shoemaker v. United States, 147 U.S. 282 (1893). If they did, then Congress would either have to diminish the authorities of the Chief Justice, or retain the current nomination and confirmation manner of distinct appointment. But this interesting constitutional question is purely a matter of academic interest: There is no prospect that this or future Congresses and Presidents will construe current statutes, or enact new ones, to depart from the historical practice of separately nominating Chief Justices, even when the nominee is a sitting Justice.
Although the President therefore was correct to indicate that a new nomination is required, there is one technical mistake in his announcement this morning: As Chief Justice Rehnquist, a stickler for ceremony, was careful to remind others, the title of the office (per statutory designation) is "Chief Justice of the United States," not "Chief Justice of the Supreme Court."
What does the new nomination mean for the O'Connor retirement? Well, if she takes no further steps, then I think that her office of Associate Justice will not become vacant in the event Roberts is confirmed as Chief Justice, by virtue of her formal letter to the President of July 1st. In that letter, Justice O'Connor wrote: "This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor."
Because a Chief Justice Roberts would fill an office distinct from that of Associate Justice, he would not be a "successor" to Justice O'Connor's office, and thus the condition of her retirement would not be satisfied.
If she takes no further action.
But I strongly expect that Justice O'Connor will retire before October 3d, principally for the reasons that Tom has identified. In particular:
(i) It has been reported that her husband is ill, and that she wishes to devote her time to him.
(ii) There is recent historical precedent -- under similar cirumstances, Justice Marshall rescinded his "conditional" resignation, and made it immediate, when the confirmation of Justice Thomas was delayed (and uncertain).
and
(iii) Most importantly, Justice O'Connor will reasonably assume that her successor will be confirmed before the end of the year, and thus before the Court issues any closely divided decisions. If so, it would mean that her sitting during the October and November arguments would have been fairly meaningless, because her "votes" on those cases will not be counted, and therefore after her replacement is confirmed those cases would either be decided without her vote, or would be reargued (in the event of a 4-4 split vote). That is to say -- there's not a great deal of institutional or practical reason for her to remain on the Court, unless it appears that confirmation of her successor will be extremely protracted.
Statements by President and Roberts
09:36 AM | Lyle Denniston | Comments (0) | TrackBack (0)
REMARKS BY THE PRESIDENT NOMINATING JUDGE JOHN ROBERTS TO BE CHIEF JUSTICE OF THE SUPREME COURT The Oval Office
8:01 A.M. EDT
THE PRESIDENT: Morning. This summer I announced the nomination of Judge John Roberts to be associate justice of the Supreme Court of the United States. I choose Judge Roberts from among the most distinguished jurists and attorneys in the country because he possesses the intellect, experience and temperament to be an outstanding member of our nation's Highest Court.
For the past two months, members of the United States Senate and the American people have learned about the career and character of Judge Roberts. They like what they see. He's a gentleman. He's a man of integrity and fairness. And throughout his life, he has inspired the respect and loyalty of others. John Roberts has built a record of excellence and achievement, and a reputation for goodwill and decency toward others.
In his extraordinary career, Judge Roberts has argued 39 cases before the nation's Highest Court. When I nominated him to the U.S. Court of Appeals for the District of Columbia, he was confirmed by unanimous consent. Both those who've worked with him and those who have faced him in the courtroom speak with admiration of his striking ability as a lawyer and his natural gifts as a leader. Judge Roberts has earned the nation's confidence and I'm pleased to announce that I will nominate him to serve as the 17th chief justice of the Supreme Court.
The passing of Chief Justice William Rehnquist leaves the center chair empty just four weeks left before the Supreme Court reconvenes. It is in the interest of the Court and the country to have a chief justice on the bench on the first full day of the fall term. The Senate is well along in the process of considering Judge Roberts' qualifications. They know his record and his fidelity to the law. I'm confident that the Senate can complete hearings and confirm him as chief justice within a month. As a result of my decision to nominate Judge Roberts to be chief justice, I also have the responsibility to submit a new nominee to follow Justice Sandra Day O'Connor. I will do so in a timely manner.
Twenty-five years ago, John Roberts came to Washington as a clerk to Justice William Rehnquist. In his boss, the young law clerk found a role model, a professional mentor, and a friend for life. I'm certain that Chief Justice Rehnquist was hoping to welcome John Roberts as a colleague, and we're all sorry that day didn't come. Yet it's fitting that a great chief justice be followed in office by a person who shared his deep reverence for the Constitution, his profound respect for the Supreme Court, and his complete devotion to the cause of justice.
Congratulations.
JUDGE ROBERTS: Thank you, Mr. President. Thank you. I am honored and humbled by the confidence that the President has shown in me. And I'm very much aware that if I am confirmed, I would succeed a man I deeply respect and admire, a man who has been very kind to me for 25 years.
Thank you, Mr. President, for that special opportunity.
END 8:05 A.M. EDT
First Thoughts on the Tactics of Nominating John Roberts for Chief
08:44 AM | Tom Goldstein | Comments (4) | TrackBack (0)
The President's nomination of John Roberts to be Chief Justice of the United States simplifies, but in other ways complicates, the effort to give the Supreme Court a full complement of nine Justices. It is certain now, just as it was when news of William Rehnquist's death was released Saturday night, that there is no practical way to confirm two nominees by the Term's effective start in late September or its formal start on October 3. The looming questions now involve the timing of the Roberts confirmation hearings, whether Justice O'Connor will take her seat at that time, and how long it will take to confirm her successor.
The President's announcement will initiate a pro forma process in which the nomination of John Roberts to Sandra Day O'Connor's Associate Justice seat is withdrawn and a new nomination for the seat of Chief Justice is sent to the Senate. The President's statement -- which focused on having Judge Roberts on the Court by the start of the Term -- seemed carefully calibrated to urge the Senate to move promptly but not express an expectation as to when precisely the hearings would start. A delay of the Roberts hearings of a few days was already almost certain in light of William Rehnquist's funeral on Wednesday, and now a further delay -- perhaps until next Monday -- seems very likely as a nod to the significance of the new position to which Roberts has been nominated.
Justice O'Connor now faces a dilemma. She presumably has made plans for the fall consistent with her personal reasons for leaving the Court. She knows that returning to the bench -- only to be replaced a month or so later -- provides the Court little or no practical benefit because a Justice's vote does not count unless she is sitting at the time the case is decided, a process that generally takes at least two months for even non-controversial cases, and generally three or more months for the closely divided five-to-four cases in which her vote would be dispositive. On the other hand, Justice O'Connor is a committed public servant, and the fact that she would be inconvenienced would not dissuade her from returning to the bench if her presence was required.
As things stand, Justice O'Connor will return to the Court. But that could change. Justice O'Connor's resignation follows the model of Thurgood Marshall's, which was similarly effective upon the confirmation of a successor. But when Justice Thomas's confirmation was delayed, Marshall submitted a second resignation letter leaving the Court effective immediately. Marshall (unlike O'Connor) was sick and largely unable to perform the duties of office, but nothing would prevent Justice O'Connor from taking the same step of accelerating her departure from the Court.
The President's statement that he would nominate a successor for Justice O'Connor "in a timely manner" -- which can be read to mean "not until the Roberts hearings are done" -- suggests that the President may himself be relying on the fact that she would continue to sit in the meantime. If so, the calculus of the White House would likely be that they are better off decoupling the two sets of hearings. But there seems inevitably to be some cost to the Administration. The nomination of a doctrinaire conservative to replace the Chief Justice could have been explained as ideologically neutral for the Court, as the new nominee would not move that seat to the right. Moving Judge Roberts to the seat of Chief Justice, by contrast, opens up again the debate over what Democrats will describe as the "O'Connor" seat -- that of a moderate conservative. There seems a marked difference, for example, in substituting Michael Luttig for Sandra Day O'Connor than for William Rehnquist.
The speed with which the President acted this morning suggests that Roberts was at the top of the White House's list all along for the mistakenly anticipated resignation of the Chief Justice this summer. Recent developments -- in which there has been some inevitable opposition but no serious threat to the confirmation has emerged -- likely only solidified the President's views of the matter. What is obviously unclear is to whom the President will turn for the slot of Associate Justice.
Roberts for Chief Justice
08:37 AM | Lyle Denniston | Comments (0) | TrackBack (0)
Circuit Judge John G. Roberts, Jr., well on his way to becoming an Associate Justice of the Supreme Court, will instead be nominated to be Chief Justice, President Bush announced on Monday. The swift switch in the wake of the death of Chief Justice William H. Rehnquist may mean that a new Chief could lead the Court at or near the opening of the new Term Oct. 3. That was part of the President's objective.
Bush made the announcement early in the day in the Oval Office at the White House, with Roberts at his side. Roberts commented: "I am very much aware that if I am confirmed I would succeed a man I deeply respect and admire, a man who has been very kind to me for 25 years." Roberts was once a Rehnquist law clerk.
News organizations reported that the President and Roberts had met at the White House Sunday evening, and that Bush told Roberts of his decision when the judge arrived at the White House Monday morning. White House press secretary Scott McClellan was quoted as saying that the President for some time had felt that Roberts "had the qualities to lead the Court."
Although the selection of Roberts for Chief was a bit of a surprise, the bigger surprise was that the President did not wait until after funeral services for Rehnquist, scheduled for Wednesday. Apparently, the White House concluded that, more than protocol, the need for speed was paramount.
Some observers have speculated that Bush all along had been considering Roberts for the Chief Justiceship, before there were any vacancies on the Court. He had been interviewed months ago for a possible seat. The Chief Justice's battle with thyroid cancer had led to the widespread expectation that Rehnquist would be the first to leave the Court. The first vacancy, though, came with the announced retirement of Justice Sandra Day O'Connor, and Bush moved to put Roberts in line for her seat to assure him a place on the Court.
Before Rehnquist's death on Saturday night, Roberts had been expected to gain Senate approval to become an Associate Justice. He has been courting members of the Senate for weeks, routinely making a positive impression. A lengthy list of liberal organizations have come out in opposition, but their combined efforts did not appear to be making much headway, particularly with more conservative Democrats in the Senate. Their opposition is based largely on a series of memoes Roberts had written in the early and mid 1980s as a Justice Department or White House attorney. The liberal groups saw in those memoes what they considered to be a disturbing pattern of stubborn resistance to the expansion of civil rights. Their opposition no doubt will carry over to his nomination to lead the Court.
Those memoes, on the other hand, have encouraged conservative organizations to believe that Roberts, on the Court, will be a solid member of the most conservative bloc, perhaps voting regularly with Justices Antonin Scalia and Clarence Thomas. These groups lost no time on Monday morning congratulating Bush on deciding to nominate Roberts as the Chief.
In technical terms, the President apparently will have to withdraw Roberts' nomination as an Associate Justice, and send up a new nomination to be the Chief Justice. No doubt the White House and Senate Republican leaders will argue that this new nomination does not require any more extended review than had already been planned for Roberts as an Associate. Democrats, on the other hand, may attempt to argue for more time to evaluate this new development.
As of early Monday, there was no word from the Senate Judiciary Committee on any change in plans to hold a hearing for Roberts starting Tuesday. There had been some talk on Sunday night about delaying the start of those hearings until after Rehnquist's funeral. That was never announced officially.
John Roberts for Chief
07:56 AM | Tom Goldstein | Comments (1) | TrackBack (0)
Various news services are reporting that the President will nominate John Roberts for Chief in a few minutes.
Sunday, September 04, 2005
Law Clerk's Remembrance
11:55 PM | Tom Goldstein | Comments (0) | TrackBack (0)
Via Volokh, Rick Garnett has this piece on Slate.
Extraordinary NYT Article
10:37 PM | Tom Goldstein | Comments (0) | TrackBack (1)
Tomorrow's New York Times has a very unusual article (via How Appealing) based on on-the-record interviews with Justices Souter and O'Connor, and possibly interviews with others not for attribution. Other information may have come from the family. Here are the facts that I had not previously seen reported or confirmed:
1. "Justice O'Connor said that as the last term proceeded, she had expected the chief justice to arrive at a decision to retire. Hoping to retire herself, she awaited word from him because she did not want to create a second vacancy. Finally, she said, 'I asked him, and he told me he really wanted to go another year and thought he'd be O.K.'"
2. "While he was receiving nutrition at the end of his life, he was no longer under active cancer treatment because all treatment options had been exhausted."
3. The Chief Justice did, in fact, have anaplastic thyroid cancer.
4. The Chief did not discuss his health with his colleagues.
5. He did not participate in the traditional morning coffees or lunches of the Justices.
6. "While two brief hospitalizations over the summer became publicly known, there were others in recent weeks that the court did not announce. Justice O'Connor said that when she returned to Washington 10 days ago, she asked the chief justice's staff to let her know when she might visit him for a few minutes in his chambers, but the call never came."
Delay in Roberts hearing
08:46 PM | Lyle Denniston | Comments (0) | TrackBack (0)
It now appears nearly certain that the Senate Judiciary Committee hearings on the Supreme Court nomination of Judge John G. Roberts, Jr., will be delayed, although the length of the postponement appears not to have been settled yet. The Committee had planned to open hearings on Tuesday.
GOP leaders of the Senate reportedly have been discussing a delay at least until after the Chief Justice is buried on Wednesday. Senate Democrats have indicated they will join in the delay.
The discussions were revealed in this statement by Senate Democratic leader Harry Reid of Nevada:
"I understand my Republican colleagues are considering a postponement of the Roberts hearings until after Chief Justice Rehnquist's funeral. I believe this is the right thing to do. The nation is already reeling from the aftermath of Hurricane Katrina, and the Senate should focus its immediate attention on helping the victims of that tragedy. The death of Chief Justice Rehnquist presents an additional reason to adjust the schedule.
"Out of respect for the memory of Chief Justice Rehnquist and in fairness to those whose lives continue to be devasted by Katrina, the Senate should not commence a Supreme Court confirmation hearing this Tuesday. A brief postponement will not disadvantage anyone."President Bush, in a statement about the Chief's death, included this comment on his plan: "There are now two vacancies on the Supreme Court, and it will serve the best interests of the nation to fill those vacancies promptly. I will choose in a timely manner a highly qualified nominee to succeed Chief Justice Rehnquist."
Reactions by the Chief's colleagues
08:32 PM | Lyle Denniston | Comments (1) | TrackBack (0)
Here are the statements members of the Supreme Court issued on Sunday about the death of Chief Justice William H. Rehnquist. No statement was available from Justice David H. Souter.
Justice John Paul Stevens:
"William Rehnquist's independent, impartial, and dedicated leadership of the Supreme Court has been an inspiration to those of us privileged to serve with him - and to the entire Nation as well. Charles Evans Hughes, a great Chief Justice whom he particularly admired, would have been proud of the example he set as the leader of the Court. He was truly the first among equals in discharging his judicial duties in a prompt, scholarly and fair manner. He was a good friend, maintaining his sense of humor and proportion throughout the difficult period that marked his most recent service. We shall miss him."
Justice Sandra Day O’Connor:
"William Rehnquist will go down in history as one of the great Chief Justices of the Supreme Court of the United States. He steered the Court along a path of responsibility and careful analysis throughout his 19 years as Chief Justice. He led the Court with firm principles but with a light touch. He never lost his sense of humor and he was able to secure the cooperation and admiration of all of the Justices for the years in which he served. He will be sorely missed."
Justice Antonin Scalia:
"Chief Justice William H. Rehnquist led a philosophically diverse group of Justices through 19 years in which public attention was focused upon the Supreme Court to an unprecedented degree. His keen intellect and sound judgment commanded the respect of his colleagues, and his personal qualities of considerateness and fairness won their affection. His death is a loss to the Court, to all the federal judiciary that he headed for so long, and to the Nation. It is a double loss for me; he was my friend long before he was my Chief. May he rest in peace."Justice Anthony Kennedy:
"William Rehnquist was a warm, compassionate, decent man; a brilliant jurist; and a Chief Justice of superb and historic stature. In his personal relations he was unpretentious to the point of being casual, almost as if to put friends and colleagues at ease with his vast knowledge of history, remarkable grasp of the law, and a mind so precise he was at once formidable and delightful. He was a skillful presiding officer of exemplary fairness. He loved his family. The American people can be grateful to them for the distinguished public service William Rehnquist gave to the Court and to our Nation.'
Justice Clarence Thomas:
"Virginia and I were deeply saddened to learn of the death of the Chief Justice. We will miss him deeply as a friend and as a colleague. He was a good man who epitomized fairness, dignity, and strength of character. Our thoughts and prayers continue to be with his family."
Justice Ruth Bader Ginsburg:
"Chief Justice William H. Rehnquist was the fairest, most efficient boss I have ever had. Speaking of his role in a 2002 address, he said: '[T]he Chief Justice has placed in his hands some of the tools which will enable him to be primus among the pares but his stature will depend on how he uses them.' In his leadership of the U.S. Judiciary and his superintendence of the Supreme Court, William H. Rehnquist used to great effect the tools Congress and tradition entrusted to him. A plain speaker without airs or affectations, the Chief fostered a spirit of collegiality among the nine of us perhaps unparalleled in the Court’s history. He regarded an independent judiciary as our country’s hallmark and pride, and in his annual reports, he constantly urged Congress to safeguard that independence. On the obligation key to judging, he cautioned that a judge steps out of the proper judicial role most conspicuously and dangerously when the judge flinches from a decision that is legally right because the bottom line is not the one 'the home crowd wants.' I held him in highest regard and affection, and will miss him greatly."
Justice Stephen G. Breyer:
"The Chief Justice was a brave, intelligent man deeply committed to maintaining the rule of law and preserving an independent judiciary.
He understood the Court and its history. He administered the Court, as he did the judicial system, effectively and with great fairness. He never allowed disagreements about the law to become personal and the Court followed his example. I much admired his personal and legal strength. I shall greatly miss him."
Court statement on funeral
08:27 PM | Lyle Denniston | Comments (2) | TrackBack (0)
The Supreme Court's public information officer, Kathleen L. Arberg, on Sunday released the following statement on funeral arrangements for the Chief Justice:
"Chief Justice William H. Rehnquist will lie in repose in the Great Hall of the Supreme Court of the United States Tuesday, September 6 and Wednesday, September 7. The public is invited to pay respects from 10:30 a.m. until 10 p.m. on September 6 and from 10 a.m. until noon on September 7.
"Funeral services for Chief Justice Rehnquist will be conducted on Wednesday, September 7, at 2 p.m. at St. Matthew’s Cathedral, 1725 Rhode Island Avenue, NW. Chief Justice Rehnquist will be buried at Arlington National Cemetery immediately following the funeral service. The funeral services will be open to friends and family members. The burial at Arlington National Cemetery will be private.
"The Supreme Court ceremony will be open to press coverage but camera coverage will be pooled for some parts of the event. Reporters who wish to cover the funeral services should call the Public Information Office [202-479-3211] for details. The burial at Arlington National Cemetery is closed to press coverage."
Jeff Toobin on Justice Kennedy
07:58 PM | Tom Goldstein | Comments (0) | TrackBack (0)
This very interesting piece will appear in the upcoming New Yorker focusing on Justice Kennedy's interest in international law.
The Schedule for the Roberts Hearings
07:54 PM | Tom Goldstein | Comments (0) | TrackBack (0)
According to an A.P. news bulletin:
Chief Justice William Rehnquist's body will lie in repose in the Great Hall of the Supreme Court on Tuesday and Wednesday and he will be buried at Arlington National Cemetery following funeral services Wednesday.The court announced Sunday that the public will be invited to pay its respects from 10:30 a.m. EDT until 10 p.m. on Tuesday and from 10 a.m. until noon on Wednesday.
As a consequence, it seems likely that the confirmation hearings for Judge Roberts will be deferred until Thursday or Friday.
News Round-Ups
10:09 AM | Tom Goldstein | Comments (0) | TrackBack (1)
For those looking for links to Rehnquist coverage on the web, the best sources are always-excellent How Appealing and this very helpful roundup from Law Dork.
Moving Forward
09:46 AM | Tom Goldstein | Comments (1) | TrackBack (0)
Most important over the next few days will be a proper remembrance for the Chief Justice, who was a true public servant who devoted his professional life to the Supreme Court. Although he had a clear vision of the law, and it was a vision that involved moving the Court substantially away from what he regarded as the excesses and missteps of the Warren Court, the Chief's principal concern was always with the Court as an institution. It was that fact -- and his related talent at running the Court and the federal judiciary more generally -- that earned him the great respect and admiration of colleagues on the left, not just the right.
Attention will now turn -- too quickly unfortunately, given that we have lost a historic figure who should be remembered and appreciated without our thoughts diverted -- to the likely successor and the process of confirmation. One issue that obviously arises is whether to defer the hearings for Judge Roberts, set to begin on Tuesday. I think it is likely that the hearings will go forward, unless the President decides to nominate Judge Roberts for the Chief's seat. Precisely because that renomination as a practical matter would delay the Roberts process -- if only because Democrats would use the change as a reason to press for the release of additional documents -- I think it is likely the President will nominate someone else directly to be Chief Justice.
More broadly, it is in the President's interest not to couple the process of confirming the successors to Justice O'Connor and the Chief Justice. Democrats have a stronger argument against a conservative successor to the Chief if the nominations are perceived as a package. If the process of confirming a successor for the Chief remains separate and distinct, it is easier for the President to maintain that a conservative appointment to succeed the very conservative William Rehnquist will not move the Court further to the right. So I think that the hearings will likely move forward.
There is some discussion of Justice O'Connor potentially remaining on the Court. That seems to me exceedingly unlikely because it doesn't provide any practical benefit. Justice O'Connor's vote in a case would only count if she were on the Court when the case was decided, not merely when it was argued. Because the President will want to name a successor for the Chief soon, rather than waiting until next summer when the Court's Term ends, it makes little sense for Justice O'Connor to remain.
Confirming a new Chief Justice undoubtedly will take time. The President may seek to act quickly -- showing decisive leadership -- by nominating a successor early this coming week. Hearings would likely not start for at least six weeks. So the new Chief would not be seated until the Court's second "sitting" of oral arguments, in November. If tradition holds -- and the Court is a very tradition-oriented institution -- cases argued in October that produced a four-to-four tie (assuming as is likely that Judge Roberts was seated by the October arguments so that there were eight sitting Justices) would be set for reargument either in late-spring or early next fall.
A series of 4-4 splits?
09:04 AM | Lyle Denniston | Comments (1) | TrackBack (0)
A scenario can now be foreseen, in the early part of the Supreme Court's Term opening Oct. 3, that the Justices could split 4-4 in a number of significant cases. That is one of the early prospects after the death of Chief Justice William H. Rehnquist. The Court, however, might be expected to try to minimize those situations, perhaps by delaying final rulings on close cases until a ninth Justice joined their ranks. A 4-4 split is an unattractive prospect for the Court, since it sets no precedent and merely upholds, without comment, the lower court ruling being reviewed. In effect, it decides nothing of permanence about the legal issues at stake.
The scenario could result if the Senate approves Judge John G. Roberts, Jr., as a new member of the Court -- either as Associate Justice, or as the new Chief Justice -- and Justice Sandra Day O'Connor goes ahead with her plan to retire. (See the post below and later dicussion in this post on the possibility of Roberts being chosen as Chief Justice.) With a Court of eight members, very roughly divided 4-4 between a bloc of more conservative members and a block of more liberal members, a split on a deeply controversial case might indeed result. (Two such possibilities are apparent. One is the case involving the constitutional requirements for a parental notice requirement for teenagers seeking abortions -- Planned Parenthood of Northern New England v. Ayotte, docket 04-1144. The other is a new test -- and there are already three on the new Term's docket -- of the division of constitutional power between the national government and the states.)
If Roberts is as conservative as the White House hopes and liberal senators fear, he could be aligned with Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas on a number of major questions. On those same questions, the more liberal Justices might well be clearly on the other side; those four are Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.
Should there be a delay of several months in the process of filling the Court's ninth seat, the Court could be confronted with serious questions about its ability to definitely resolve key cases. (It had just such difficulty most recently in a Term when then-Justice Louis F. Powell, Jr., was absent for several months due to illness; there were repeated 4-4 splits.)
This prospect would put a good deal of pressure on the Justices to try to find ways to decide really tough cases, perhaps by narrowing the issues, or finding at least a plurality so as to get a result, even if not the most satisfactory one. (One could make the argument that the Court last year decided the famous Pledge of Allegiance case only on a narrow jurisdictional point, in the face of a likely 4-4 split with Justice Scalia disqualified from the case.) Simply delaying a decision is an option, but not one that the Court would be likely to embrace very often. Because some of the Justices are more flexible than others in their views (for examples, Breyer and Kennedy), those individuals might be more determined to help craft a working plurality or majority even on the most controversial issues.
All of this raises significant questions about the role Sandra Day O'Connor might play in the near future. If Roberts is confirmed as her successor, the position for which he is currently the nominee, her retirement would take effect; she specified that condition on her plan to retire. She could opt to remain on the Court only if Roberts' nomination to replace her is withdrawn, and President Bush resubmitted his name for the Chief Justiceship. O'Connor cares deeply about the Court as an institution, and might feel some strong pull to remain. At the same time, however, opting to stay might be seen by her as somewhat irregular, possibly even as implying a lack of confidence that the Court could find a way to function well without her.
Chief Justice Earl Warren remained on the Court a year longer than he had planned, but that was only because the Senate refused in 1968 to confirm a successor (Justice Abe Fortas). That is considerably different from the situation that has now arisen, where the Chief Justiceship itself is vacant.
Uncertainty, but no turmoil, at the Court
01:00 AM | Lyle Denniston | Comments (2) | TrackBack (0)
The Supreme Court will resume its formal duties in just over three weeks, facing a period of uncertainty -- perhaps lasting for several months -- in the wake of the death of Chief Justice William H. Rehnquist Saturday night. The Court will operate as close to normal as possible, with the senior Associate Justice, John Paul Stevens, in charge. Stevens is not expected to take any significant initiatives without fully consulting his colleagues, since he holds no formal position other than his own Associate Justiceship. The law does not provide for an "Acting" Chief Justice.
A Court of seven Justices can function fully, since the law specifies that it takes a quorum of six to take official action as a Court. The Court is scheduled to begin on Monday, Sept. 26, to review new cases that have developed during its summer recess. Public hearings will begin as scheduled on Monday, Oct. 3. At this point, it is uncertain whether Judge John G. Roberts, Jr., will have been approved by the Senate as a new Associate Justice by the time of either the Sept. 26 Conference or the beginning of hearings Oct. 3. If approved, he would take the seat left by the retirement of Justice Sandra Day O'Connor.
Because the existence of two vacancies, rather than one, is expected to affect more profoundly the future of the Court, the process could become fairly lengthy. Although the White House and Senate Republican leaders are likely to stress the need to fill the vacancies as soon as possible, the difficulties that could arise in the process -- especially, political difficulties -- may not be resolved easily or quickly.
It is possible, of course, that the President could provide a temporary replacement for Rehnquist. That could occur if the Senate were to take a recess during the time that the succession to Rehnquist's seat is unfolding. It would be likely, though, that the President would want to give such a "recess appointment" to the individual he planned to name as a permanent replacement, so the selection of even a "recess Chief Justice" may not be done swiftly. A recess appointee could serve until the end of the current Congress -- that is, until January of 2007.
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