The Court: What Now?

UPDATED below 7am and 10:30am.

The death of Chief Justice Rehnquist late Saturday is bad news for America and a minor crisis for the Bush Administration. Already smarting from (unfair) criticism over Federal assistance after hurricane Katrina, the President's facing another controversial decision squarely in the media magnifying glass. But, if anything, the Rehnquist vacancy poses an even greater challenge to left-wing Democrats.

But before the politics, a moment for the man and his legacy. Rehnquist was a smart and capable Jurist and an excellent administrator. Though no Scalia-like scholar, the chief also wasn't a Scalia-like polarizer, as Tom Goldstein observed months ago:

William Rehnquist has devoted most of his professional life to public service and a commitment to the rule of law. . . With no responsible exception that I know if, the Chief is respected admired by every person associated with the Court, regardless of ideology. He has been the Court's leader for two decades, most recently guiding it through events like the discovery of anthrax in the Court's mail, cases like Bush v. Gore that put the Court at the center of a national political firestorm, and (although it involved him individually rather than the Court as an institution) the impeachment proceedings for President Clinton. More broadly, the Chief has also been the leader of the federal judiciary as a whole, defending it against attacks from both right and left. The country could only hope that a nominee to take his seat would display many of the Chief's characteristics and skills.

Though the chief was unquestionably conservative, he preferred consensus to lonely principle--as best shown by his majority opinion declining to overturn the need for so-called Miranda warnings because the case had "become embedded in routine police practice to the point where the warnings have become part of our national culture." Dickerson v. United States, 530 U.S. 428 (2000).

Rehnquist's loyalty to the institution of the Court was legendary, which makes his determination not to quit despite terminal thyroid cancer an all too human exception. A Supreme Court spokeswoman said the Chief "continued to perform his duties on the court until a precipitous decline in his health the last couple of days."

So what now? Bush must choose another Justice from the same list of candidates; no additional interviews should be required. Though Senate hearings on Judge Roberts were to start Tuesday, they'll likely be postponed. Bush must quickly decide whether to withdraw Roberts and re-nominate him as Chief Justice. Despite some risks, he should, and I predict he will, filling the additional associate justice slot later. Because Justice O'Connor's retirement is effective upon replacement, this would allow the Court to start the October term without a vacancy (thus avoiding 4-4 ties on important upcoming cases).¹ As for the future nominee, 10th Circuit Judge Michael McConnell is the best bet, trailed by Janice Rogers Brown (D.C. Circuit), Emilio Garza (5th Circuit) and Edith Jones (5th Circuit).

Leftist opponents of the administration face an even tougher choice. Without evidence, much less smoking gun, they've gone "all-in" opposing Roberts. But suddenly, Roberts looks to be the less controversial nomination, even for Chief: almost all remaining candidates are more conservative or at least carry a larger paper trail. The left's already depleted their anti-Supreme Court nomination fund -- wasted on Roberts -- leaving them low on cash, if not a boy-who-cried-wolf, for round 2.

Rehnquist's passing is sad. Still the bottom line is clear: At least two Supreme Court seats will be filled by the George W. Bush administration. The alternative -- chosen by, say, the Hillary Clinton administration -- would be far worse.

MORE:

A DU nutcase named Spazito already floated a Rehnquist conspiracy theory: "Bet he died days ago and they are just announcing it now to try and take the heat off bush. One man has died, well guess what, thousands have died and more are still dying." Not to be outdone, Kos poster "All My Neighbors are NeoCons" says: "Amen! That was the first thing that I thought was "Holy f*ck...they killed Renquist [sic]." Also on Kos, someone called "fritoy911" speculates: "Could it be rove orderd [sic] his death to distract the press from those dieing [sic] in new orleans?" And Article II, Section 2, cl. 2 somehow escaped the attention of Rob on AMERICAblog:

A bi-partisan, bi-cameral Congressional committee should convene immediately and create a list of consensus candidates from which the President should, if he has any shred of decency and dignity left, choose. Multiple choice from a list of QUALIFIED candidates is all that this President is capable of handling.

Back on planet earth, appreciation and prediction. The first from Wendy Long at NRO:

The chief instilled a high tone of collegiality and respect at the Court, even in this period when the justices were deeply and bitterly divided over fundamental issues. My former boss, Justice Clarence Thomas, used to remark how wonderful it was that the justices could engage in sharp constitutional debates while still maintaining civility and real friendship, largely because the chief's example reminded them that they were part of an institution of American government much greater than themselves. Chief Justice Rehnquist's ability to set this tone for the deeply divided Court is even more remarkable when contrasted with the incivility that has taken hold in another deeply divided institution across the street — the U.S. Senate.

Rossputin blog fires-up a crystal ball:

The political implications of this situation, having two Supreme Court vacancies simultaneously, will whip radicals (environmental, racial, sexual, economic) and collectivists of all sorts into a frenzy of paranoia which will make the Roberts process so far look positively tame. It might even make what happened to Robert Bork look civilized. . .

In order to prevent such a fiasco (which the Democrats probably want as fund-raising motivation), President Bush should refuse to nominate someone to fill the Chief Justice position until Judge Roberts is confirmed.

The other reason to have some hope that the process will not become a national embarrassment is that Justice Rehnquist was such a conservative Judge. Even more than with Justice O'Connor, this means that Bush's likely very conservative choice to fill the Rehnquist vacancy will have little effect on the net balance on the court. If it were Justice Stevens or Ginsburg who were being replaced, the fight would probably be substantially more brutal than replacing Justice Rehnquist will be.

Yet, I do not see much chance of Senators Feinstein, Kennedy, Leahy and the other members of the left wing of the Democratic party behaving any way other than reprehensibly through this process. In fact, the Democrats will probably become even more aggressive against Judge Roberts for this same reason...they know that another conservative nomination is coming down the pike.

Still More:

Kathryn Jean Lopez and Ann Althouse speculate about Roberts-for-Chief; in comments, and on his website, Beldar says it's "fairly unlikely."

More x 3:

The wolves at the National Organization for Women are howling:

Make no mistake. The passing of Chief Justice William Rehnquist creates a crisis unlike any in my 30-plus years in the women's movement. While we send condolences to Justice Rehnquist's family, this is a crisis for our movement and we must act now.

This second vacancy creates double jeopardy for women. We are now in the fight of our lives, but it's a fight we've won before and we will win again. Senators must oppose every nominee who opposes our rights, for as long as it takes — and we must demand no less.

More x 4:

I'm debating the "Roberts for Chief" notion with Bill Dyer (the man behind the Beldar curtain) in comments on Ann Althouse's blog.

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¹ An abortion case, Planned Parenthood of Northern New England v. Ayotte (docket 04-1144), is scheduled to be argued November 30th.

(via The Corner and LGF)