As I predicted might happen, President Bush has undertaken a switcheroo whereby he will withdraw John Roberts’ nomination to replace for Justice Sandra Day O’Connor and will instead submit his name to the Senate as the replacement for Chief Justice William Rehnquist (as the ever-helpful SCOTUSblog notes, a new nomination is technically required and can be expected within the next day or so).
What does this mean? For one thing, assuming that Roberts is confirmed (and I think it’s highly unlikely that he will be filibustered or even that he will receive more than a smattering of "no" votes), it means that the Chief Justice’s seat will be filled quickly – and that is a good thing for the Court, since the Chief has significant administrative responsibilities not only for the Supreme Court but for the whole federal judiciary that need to be taken care of.
For another, it means that the ideological balance of the Supreme Court is, once again, wide open. Chief Justice Rehnquist was, of course, a reliable conservative, and Roberts seems likely to vote much like Rehnquist would have much of the time. Maybe he will even stray left from where Rehnquist would have been every now and then – if Roberts’ respect for precedent is as strong as he says it is, he might be loath to overrule cases that Rehnquist would have been happy to wipe from the US Reports (Roe v. Wade comes to mind). Therefore, replacing Rehnquist with Roberts doesn’t change the outcome of very many cases, and certainly doesn’t seem to shift the Court to the right.
The big, big question, therefore, is who President Bush will choose to replace Justice O’Connor – who, it appears, will have to stick around longer than she would have liked.* One assumes that the "short list" of nominees that was in effect when O’Connor announced her retirement has not changed much, which means we’re still talking about Judges Alito, Luttig, Garza, McConnell, E. Jones, Clement, Wilkinson, and maybe Priscilla Owen and Janice Rogers Brown, just for fun. Non-judge candidates would continue to include Alberto Gonzales and Ted Olson. I would think, though, that although Bush obviously resisted the pressure not to name a white guy to replace O’Connor last time, he will have a very tough time doing so this time.
So who will it be? I give the favorite’s slot to Alberto Gonzales, who Bush obviously likes, who is Hispanic, and whose lack of appeal to the Dobsonites is blunted by the facts that Bush has nominated Roberts (claimed rightly or wrongly by the Dobsonites as one of their own) to be Chief and by the fact that Gonzales will have an easier ride from the Dems than many other possible nominees – Bush has little political capital to spend right now and he can’t afford a big brouhaha. Emilio Garza and Edith Jones are close seconds: both fill the "non-white guy" requirement; both are solid conservatives with long paper trails that will give Democrats lots and lots to talk about; they’d both make the "base" happy but would guarantee a tough confirmation fight, and I think Bush would rather get through this process quickly and relatively easily than guarantee a winger on the Court (at the end of the day, how much does he really care?). Here’s my handicap:
Alberto Gonzales: 2-1
Emilio Garza: 3-1
Edith Jones: 3-1
Edith Clement: 4-1
Michael Luttig: 6-1
Samuel Alito: 6-1
Michael McConnell: 6-1
Priscilla Owen: 8-1
Janice Rogers Brown: 10-1
J. Harvie Wilkinson: 10-1
Ted Olson: 12-1
Got a different handicap? Drop it in the comments!
*That, too, is an interesting issue. O’Connor’s resignation letter takes effect only once her successor is confirmed, but of course she could submit a new letter resigning immediately. Whether she will do so is anyone’s guess. The problem with her sticking around is that it makes little sense for her to stay for a month or so, since even if she hears argument in a case, her vote doesn’t count if she’s off the Court by the time the case is decided. So if she stays, she might as well stay for a few months. That’s not what she had in mind, and it’s unclear whether she’s willing to do it.