Timothy Sandefur has a brief post up about who might be named the new Chief Justice of the Supreme Court. He pointed out a problem with a possible Thomas nomination that I hadn't thought of - why would he accept it? While there might be some lure to being the first black Chief Justice, it would also mean going through another nasty confirmation fight, and why on earth would he want to do that after what happened the first time? I can't imagine it would be worth it to him for what, as Sandefur points out, is little more than a lot of additional responsibilities.
He does point out a very interesting possibility, naming Ginsburg as Chief Justice. He's certainly right to suggest that it might buy Bush some goodwill with the Democrats in the Senate and give him an easier time with whoever he names to replace her as Associate Justice, and it would mean the first woman Chief Justice, a feather in Bush's cap. Not a bad idea from a political standpoint, but would his base accept that? Not likely, but perhaps they could be persuaded not to yell too loudly since, as Sandefur points out, the Chief Justice doesn't really have any additional power. Interesting ideas.
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I doubt that Bush would Ginsburg for chief. If Bush wanted to nominate a woman, he would probably go with O'Connor, even if she is a little old. (Actually, if she were to be nominated, confirmed and serve for only a year or two before retiring, that would give Bush another chance at appointing the chief.)
I see another potential problem with Thomas. The chief is also generally the court manager and needs to build alliances to get a majority. I doubt that Thomas would be particularly good at that. Others have noted the same problem with Scalia.
Wishful thinking maybe, but how about Kennedy? He'd probably have a relatively easy confirmation, wouldn't appear to generate much passionate opposition from either side, and if he really *is* a "presumption of liberty" guy, so much the better.
I agree with Mr. Sandefur that there is little meaningful upside to being the Chief Justice. The Chief Justice gets a truckload of administrative duties, but his or her vote is still just one of nine. I also agree that Justice Thomas wants to avoid another round of confirmation hearings; he's still bitter about his first go-around with the Judiciary Committee. That being said, ego is oft-times a powerful force. In the end, though, I'm sticking to my guns: Justice Thomas would be too easy a target for the Democrats. President Bush doesn't need to go there.
While I like the idea of Justice Ginsburg as the Chief Justice, I can't imagine this actually happening. For starters, I don't know that she's interested. Age and health are the big factors. If memory serves, she battled colon cancer back in 1999. Although I've heard nothing about her health recently, she seems content as the Court's spokesperson for the liberal point of view. On top of that, I just don't think President Bush has the courage to make this move. His neocon/fundamentalist base would be so incredibly chapped, they might stop sending their checks to the RNC. Bold ideas don't stand a chance when the checkbook is in play.
No, Kennedy is about as big a risk as the President can take. And make no mistake: it is fraught with some risk. Nominating as Chief Justice the man who brought us Lawrence is certain to get the scribes at WorldNutDaily and Tech Central Station writing that the President is a traitor. But the Administration can manage the spin on a Kennedy nomination: Lawrence wasn't really his fault; he was simply doing what a good judge must -- follow the law, which has, of course, been corrupted by decades of liberal "activist" judges; and as Chief Justice, Justice Kennedy will lead the way back to the righteous path of "strict" interpretation. Yada, yada, yada. You get the idea.
On the discussion thread where Ed posted my comment, Mr. Rowe raised the possibility of another Souter-like Justice: one about whom little is known. The possibility of seeing one or more "stealth" nominations is really intriguing. They often backfire, as did Souter (some have speculated that Senator Rudman deliberately pulled a fast one there...) and Justice Blackmun. I'd be interested in seeing comments on who readers think might be good or likely stealth candidates. While it is all so much speculation, it's still good clean fun.
Discuss.
I think this discussion highlights what I said a couple days ago, that there really is no good choice for Bush to replace Rehnquist. Rehnquist himself was a fairly obvious choice when Burger retired because he is, despite being pretty doctrinaire conservative himself, a coalition builder. He particularly likes to find very narrow grounds for a decision and likes to avoid sweeping declarations of principle. Scalia is the polar opposite of that, Thomas has a whole host of problems, and Kennedy, as Dan noted, would surely enrage the social conservatives. I wouldn't be surprised to see Bush name someone directly to the Chief Justice seat, though that brings its own problems with it. It would mean only one confirmation fight rather than two, but it would also raise some hackles with the sitting justices. It's a lot of fun to speculate, though.