Rehnquist's Death

I've been so busy with unpacking that I didn't know until today that Chief Justice Rehnquist had died. It's certainly not a surprise, given his battle against thyroid cancer, but the timing is almost surreal. Not only does it follow on the heels of the disaster in the gulf coast area, but it is 3 days before the confirmation hearings for his former clerk, John Roberts, are set to begin. Don't be surprised if those hearings are postponed so that the White House may decide how to proceed. And they have a lot of options to consider.

The first question is whether they want two confirmation hearings or three. They could name someone directly to the Chief Justice position, possibly even Roberts, and then they would only have two confirmation hearings to worry about. Or they could elevate someone from the current seven justices to the Chief position and they would have three confirmation hearings, one for chief and two for associate justice nominees, one obviously being Roberts. And they have to decide this at a time when the President's approval ratings have taken a beating over the war in Iraq and the slow response to the tragedy in New Orleans (I'm not saying he deserves the blame for the latter, only that the public appears to be rather disgruntled over it; I've frankly been too busy to even consider the question).

So let's first consider the question of the Chief's position. Now I'm not an insider by any means, but this is what I've heard from those with some connections. Clearly, the 4 liberals on the court (Souter, Ginsburg, Breyer and Stevens) won't even be considered. That leaves Kennedy, Scalia and Thomas. Given his position in Lawrence and in the earlier abortion case in which he changed sides (either Webster or Rust, I think the former, but I'm too tired to look it up right now), Kennedy is an unlikely choice. He would be my choice on the court, but he's highly unlikely to be Bush's choice. That leaves Scalia and Thomas, and here is where things get interesting.

Scalia has been seen as actively campaigning for the job on the DC party circuit. He's never been known as a guy to make the scene in DC, but over the last year or so he's done far more gladhanding than he'd ever done before, an indication that he really wants the Chief Justice nomination. Bush's base would obviously love him. The Democrats couldn't possibly muster the votes to kill his nomination, given the 98-0 approval in his first confirmation hearing and his widespread perception as an exceptionally brilliant jurist. The downside? Scalia is a bombthrower, not a consensus builder. He has a habit of ripping his fellow justices to shreds in his dissenting opinions. On the other hand, he also really values the give and take of the justice's conferences and has complained that Rehnquist allows very little time for open verbal debate in conference; I suspect the other justices might prefer Scalia's way on that.

From what I've heard, Clarence Thomas has already told the White House that he would prefer not to be nominated as Chief Justice. I don't know that for certain, of course, but if that is the case one could hardly blame him. I can't imagine he is eager to go through what he went through the first time all over again. But he would be the first black Chief Justice, and that carries a lot of weight as well. The truth, though, is that he would be the most difficult nominee to get through confirmation so that makes him less likely at a time when Bush's political capital is waning a bit.

The other possibility, of course, is that he nominates someone directly to the Chief Justice position from outside the court, possibly Roberts or someone else on his short list. Michael McConnell would be a popular choice for that and would likely have little difficulty being elected. The others on Bush's short list - Garza, Gonzales, Luttig and a couple others - would have a more difficult time. If he was to name one of them, I think it would more likely be to an associate position.

Generally speaking, I think it's a bad idea to nominate someone directly to the Chief Justice position. That position requires skill and experience at maneuvering the politics of the court and juggling a diverse group of egos and minds. There have only been 16 chief justices in the history of the court, and Rehnquist himself replaced perhaps the worst of the bunch, Warren Burger. Chief Justice Burger simply didn't have the respect of the court. He was not a great intellect himself, nor a good administrator, and he was viewed as an incompetent by those under him.

The same is certainly not true of Rehnquist, who was highly thought of by his intellectual allies and opponents on the court alike. He had a great deal of respect for the history of the court (and was quite a good historian of the court himself) and carried himself exceedingly well in the position. He was known for having a great sense of humor and for his collegial approach to controversies within the court. He also took very seriously his role as chief administrator of the entire Federal court system and oversaw great improvements at every level. In short, William Rehnquist leaves big shoes to be filled. And I, for one, am dying to see who will attempt to fill them.