Analysis: The Rehnquist question remains
Justice Sandra Day O’Connor announced plan on Friday to retire leaves in a continued state of uncertainty the situation surrounding Chief Justice William H. Rehnquist. As of midday Friday, there still was no indication at the Court that Rehnquist would be making any announcement soon about his own plans. It is very likely that he had been told about O’Connor in advance, probably no later than Thursday, but there is no way to know whether that had made a difference.
Unless the Chief Justice already has made a firm decision to continue serving, O’Connor’s plan at a minimum complicates Rehnquist’s choice. There is genuine doubt that he would voluntarily opt to retire and create a second vacancy at a time when Senate approval of even one nominee has to be in serious doubt.
Although O’Connor plans to remain on the Court until the Senate approves a successor, that might not be an option that would be open to Rehnquist, should he be compelled by his health to retire. Given the present, doubtful state of his health as a cancer patient, any decision by him to depart probably would mean that he would not be able to remain while the process over a successor unfolded.
That could mean that the Court would return in October with one vacancy, and with a second vacancy imminent. Those who know Rehnquist do not believe he would put the Court in that position, if he could avoid doing so. Thus, the conclusion — tentative though it definitely is — is that Rehnquist will be remaining on the Court for the time being.
President Bush has it in his power to make the Senate process in considering an O’Connor successor move more rapidly and with less controversy. If he were to choose a nominee of unquestioned reputation, strong judicial temperament, and moderate views, the chances are that the Senate fight might not be as deep, as angry or as prolonged. But the fact that O’Connor’s replacement may well be in a position to turn the Court around on some of society’s most basic issues — such as the future of Roe v. Wade – may make irresistible the temptation to name a strong and reliable conservative who might be able to do just that. The President’s more conservative advisers, like Vice President Cheney and deputy staff chief Karl Rove, almost certainly will be pressing him to name as conservative a nominee as can be found. So will legions of his most conservative political followers.
If that happens, the dispute that would follow in the Senate may well make pale, by comparison, the fight in 1987 over replacing Justice Lewis F. Powell, Jr. — who, like O’Connor — held the balance of power on the Court. The controversy that arose over nominee Robert Bork, ultimately leading to his defeat as Powell’s successor, was about nothing less than the future of the Court. That could be at stake all over again.
Any Congressional recesses coming up any time soon?
Comment by WB — July 1, 2005 @ 11:54 am
With O’Connor Retiring, It Makes Sense for the Chief to Retire Too
As Howard points out, because of Justice O’Connor’s position as a swing vote on the Court, the battle over appointing her successor could be fierce. Note the opposition to Alberto Gonzales following the rumor of an O’Connor retirement. If the…
Comment by Election Law — July 1, 2005 @ 11:54 am
I think the Chief Justice also retiring may actually help to get the new nominees approved. Having 2 vacancies leaves room for a compromise – 1 conservative and 1 moderate for instance – rather than everybody focused on just the one seat.
Comment by Bret — July 1, 2005 @ 12:10 pm
It always amuses me when a “compromise” is described as “1 conservative and 1 MODERATE” but ’tis the world in which our politics live.
Comment by Mick — July 1, 2005 @ 12:25 pm
To answer the first comment, the Senate which recess today, under its announced schedule, will be in session July 11 through July 29 and returns on September 6. Any nominee has to under go the normal FBI checks and submit extensive personal financial data, tax returns, etc. This takes time. If a nominee has recently undergone some sort of confirmation, then the time required to get all this together is less. Also, if the nominee is a sitting Member of either the House or the Senate, they have recently filed their annual financial disclosure forms so they can get this together rather quickly. There are just some practical impediments to a quick beginning of hearings. Unless hearings are scheduled during the August recess, hearings probably will not start before September given these practical considerations. The Senate, however, has never been accused of being practical and hearings could begin very early before all the checks are completed under a strategy to rush through a nominee before opposition has a chance to build momentum. The unstated reason that August hearings are not favored is that this is when the families of Senators expect them to be available for family “stuff”; interference with this family time absent a world war can be the cause of divorce–I am not kidding. Another facor which would cause me to question whether August would be the time for hearings is that it is a no news month and anything which makes news is amplified by several times. Also, the Washington press plans its family vacations for August and having hearings that month means that you have 5,000 angry reporters in hot and humid Washington. The short answer to the legitimate, impled query above is that no one really knows at this point.
Comment by David Whalin — July 1, 2005 @ 12:40 pm
Another piece of historical context would be helpful. When Chief Justice Burger resigned, the liberals spent all of their energy trying to derail Rehnquist, and a guy named Scalia sailed through.
Comment by Marc Shepherd — July 1, 2005 @ 1:15 pm
O’Connor’s resignation complicates Rehnquist’s decision in another important way: If Rehnquist believes O’Connor’s successor will be a strong conservative, this may increase his desire to remain on the Court for the upcoming term. Decisions that would have been 5-4 in favor of the liberals, with O’Connor as the swing vote, would now be 5-4 in favor of the conservatives, with O’Connor’s replacement as the swing vote. Rehnquist would not want to risk the possibility that HIS replacement would be a moderate, a la O’Connor, thereby maintaining the current balance. I predict the Chief will remain on the Court for the next term, health permitting.
Comment by Chris — July 1, 2005 @ 1:46 pm
A journal article published in 2002 on the ideology of potential George W. Bush Supreme Court nominees is a very good read right about now. It can be found at:
http://www.umassd.edu/cas/polisci/bushsct.pdf
Comment by senatorgirth — July 1, 2005 @ 1:49 pm
I disagree with you that this person would be a swing vote on such as Roe v. Wade. The court would now vote 6-3 to uphold Roe v. Wade. That has been the case since Ruth Bader Ginsberg replaced Justice Byron White. As someone who opposes Roe v. Wade, I don’t see two new conservative nominees making the difference. It might make a difference in things like gay Boy Scout leaders, 10 commandment in public places, leaving God in the pledge of allegience, etc. I strongly support two conservative nominees if there are two vacancies.
Comment by Matt Humphries — July 1, 2005 @ 1:53 pm
I like Mike Luttig and Janice Rogers Brown. That would a great daily double.
Comment by Allan Bartlett — July 1, 2005 @ 1:54 pm
Sandra D is Gone
I know that future generations will now be spared even more confusing test and “reasonable basis” type of explanations which are great for finals questions but hell on students, which is always a good thing.
Comment by On the Wright — July 1, 2005 @ 2:28 pm
This is early in the game, but in the few hours since O’Connor’s retirement was announced, there appears to be a framing of the issue, in the media, around just how “moderate” a potential nominee would have to be. It seems to say a lot not so much about a particular nominee’s judicial temperament, but rather that maintaining the current balance is seen by many Americans as important. If such a framing is supported by the polls, it would serve to move any nomination away from a perceived “radical” and towards a moderate conservative.
Comment by Michael — July 1, 2005 @ 2:29 pm
I say let President Bush make his nomination, have a hearing where both sides get to have their say, then vote them up or down after a vigorous debate on the floor of the Senate.
Comment by Chris — July 1, 2005 @ 2:36 pm
President Bartlett would be proud. I have suspected for some time that Washington was slowly beginning to subconsciously mimic The West Wing.
Comment by RAO — July 1, 2005 @ 2:41 pm
Justice O’Connor Retiring?
(multiple updates) FOX NEWS is reporting, citing three independent sources, that Supreme Court Justice Sandra Day O’Connor will announce her retirement later today. (Unlike yesterday’s report, this is not a joke.) Prediction: within 30 minutes of the m…
Comment by The Indepundit — July 1, 2005 @ 2:47 pm
The best choice: Judges John Roberts (D.C. Circuit)
Comment by Alex — July 1, 2005 @ 2:51 pm
Jason Samuel: O’Connor-ed
As many of you may have read, Justice Sandra Day O’Connor announced her retirement early today. Story here. This was predicted by Bill Kristol, and posted here. As has been consistently the case, SCOTUS blog offers some well reasoned commentary…
Comment by De Novo — July 1, 2005 @ 3:29 pm
Mr. Humphries is correct. As of now, it would take Stevens or Ginsburg to retire, in addition to O’Connor, to reverse Roe v. Wade. And let’s be honest that is the central line for battle lately. All of the other issues are rather peripheral. For liberals to moderates it is a pro-choice nominee they seek (and if a judge refuses to answer, their silence will serve as enough of an answer for Sen. Kennedy), and conservatives to moderates seek a pro-life nominee. But it does not matter of O’Connor is replaced by a conservative. The furor will reach a boiling point should Ginsburg or Stevens or both step down in the second term because then the USSC will be radically changed with (I believe) a new, young generation of conservative jurists.
What does this mean? It means for better or worst states will be making the decisions, and on issues such as prayer, abortion, gays, etc. the courts will have a more restrictive roll. And local & state governments in addition to state initiatives will play a prominent role for years to come.
Comment by Dave — July 1, 2005 @ 6:06 pm
On the daily double idea – the analysis that Rehnquist would tough it out another term unless an OConnor successor is confirmed quickly (unlikely) sounds sound … but if it came to 2 vacancies, what about:
Michael Luttig and Emilio M. Garza. Both are reliably conservative and highly qualified Federal judges … as noted, I’d bet the Dems would focus all their fire on Luttig, setting up a similar dynamic as in 1986 w/ Rehnquist and Scalia.
Alex Kozinski of the 9th circuit would be interesting choice too.
Another way to deflect a nomination fight would be for the President to take up Sen Reid’s suggestion, and nominate a Senator: Sen John Cornyn (formerly on Texas Supreme Court). Reid would likely eat his words though on that though, Cornyn would be less acceptable to Liberals than these other choices.
The BEST choice would be to clone the excellent Scalia 9 times and be done with it, but we’ll have to make do with lesser legal mortals until science is perfected. :-)
Comment by Pat — July 1, 2005 @ 6:18 pm
“If he were to choose a nominee of unquestioned reputation, strong judicial temperament, and moderate views,”
Never happen – “Churchy wanna get paid”
Comment by Steve J. — July 2, 2005 @ 6:15 am
Adieu, Sandra Day O’Connor; Bonjour, Armageddon
The blogosphere is abuzz with the news of Sandra Day O’Connor’s resignation. Just a few notable mentions:
From Captain’s Quarters :
O’Connor’s retirement puts more pressure on the Senate than a Rehnquist retirement wou…
Comment by TMH's Bacon Bits — July 2, 2005 @ 8:24 am
What was remarkable about O’Connor’s resignation is that it is one of the few in recent history that involve a voluntary departure from the court. No one doubts that she was able to serve for several more years, at least. No doubt a mix of personal and strategic considerations were involved in that choice.
The same cannot be said of a Rehnquist resignation. He appears set on the traditional course of holding on until he has no other choice but to resign for incapacity or as a result of his death. Cancer does not consider the political climate or the capacity of the Senate to handle multiple nominations. If medical pundits are correct that Rehnquist has a very aggresive form of cancer, then he may be forced off the bench in the near future whether he wants to leave or not.
O’Connor, of course, is well aware of these realties. Indeed, they may have impacted her timing, perhaps in the hope that the political uncertainties associated with a two vacancy situation would produce a more desirable result.
Multiple vacancies also increase the temptation to make a recess appointment is the delay in getting a nominee approved is considerable. Pryor’s case has basically relegitimatized the method which has been used for Supreme Court justices before. It is hard to imagine the court choosing to take an aggressive stance on any issue with only seven or eight active members.
Comment by ohwilleke — July 2, 2005 @ 2:32 pm
Supreme Court Derby
My first choice is still Janice Rogers Brown….
Comment by Sierra Faith — July 2, 2005 @ 11:46 pm
With O’Connor Retiring, It Makes Sense for the Chief to Retire Too
As Howard points out, because of Justice O’Connor’s position as a swing vote on the Court, the battle over appointing her successor could be fierce. Note the opposition to Alberto Gonzales following the rumor of an O’Connor retirement. If the…
Comment by Election Law — July 5, 2005 @ 3:23 pm
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