One of the first thoughts that crossed my mind when I learned last night of Chief Justice Rehnquist’s death was whether President Bush would convert John Roberts’ nomination to replace Justice O’Connor into a nomination to replace the Chief. Unfortunately for me, Rick Hasen is a far more diligent blogger than I am, and got his thoughts online first. Hasen thinks it’s a likely scenario, and so do I.
Hasen gives 5 reasons: (1) assuming that Bush planned to elevate Roberts eventually, this is the easiest way to do it; (2) the Court needs a Chief more than it needs eight Associate Justices; (3) Justice O’Connor wouldn’t mind continuing to serve for longer than she expected to in light of Rehnquist’s death; (4) this would allow Bush to replace O’Connor with a woman; and (5) weak opposition to Roberts will make it a relatively easy confirmation.
I agree with all of those points, and would add a couple of thoughts of my own. Until the Chief Justice’s seat is filled, Justice Stevens – the Associate Justice with the most seniority – will be more or less running the show. He will not exactly be the "Acting Chief" (there is no such position), but he will inevitably be looked to as the current head of the Supreme Court (in addition, of course, he will get to decide who writes every opinion in which he votes with the majority). And he’s arguably the Court’s most liberal member. The Bushies will not want Justice Stevens to be heading the Supreme Court for one second longer than absolutely necessary, but unless Roberts is moved up now, the process of replacing the Chief is going to take months – a new nomination must be submitted, new questionnaires must be filled out, hearings must be scheduled and held, and votes must be taken. Moreover, the Court’s October Term starts in about a month, and it will not function well with eight Justices – with Rehnquist gone, the prospect of 4-4 votes on big cases looms particularly large (an important abortion case and several states’ rights cases are on the docket for early in the Term). (FYI: a 4-4 vote results in a ruling of "affirmed by an equally divided Court," which means the lower court’s ruling stays intact but the Supreme Court’s action has no precedential effect.) Justice O’Connor’s retirement takes effect only when her successor is confirmed, so if Bush withdraws Roberts’ name to replace her and resubmits it to replace Rehnquist, O’Connor will remain on the Court and the Court would be at full strength as soon as Roberts replaces Rehnquist.
Other astute Court watches think this is not a likely scenario. And there are definitely reasons for Bush not to take this path. But I still think there’s a good chance he will. We shall see.
