pageok
pageok
pageok
William Hubbs Rehnquist:
Two quick thoughts about the passing of Chief Justice Rehnquist: one thought about Rehnquist's legacy, and the other about his likely replacement.

  First, Rehnquist's legacy. Rehnquist was probably the most underrated Justice of the last few decades. He was a brilliant man, but he wasn't showy. His opinions tended to be short, spare and minimalist; they answered the question presented and little more. Especially as Chief, Rehnquist didn't view legal opinions as opportunities to make grand jurisprudential statements. This is speculation, and should be discounted accordingly, but my guess is that there were two main explanations for Rehnquist's understated approach. The first was simple personal modesty. Rehqnuist just wasn't a showy person. The second reason, and perhaps the more interesting one, is that Rehnquist was very much a legal realist. He knew that the Court wasn't likely to be bound by grand jurisprudential statements expressed in prior opinions, so he figured there wasn't much point in making those statements.

  Whatever the reasons for it, Rehnquist's understated approach didn't help his standing among academics and other outside court-watchers. It's the jurisprudential nuggets and their broad implications that observers savor the most. The idea that the Justices on the Supreme Court are engaged in a grand struggle between opposing theoretical commitments makes for good entertainment, and provides lots of fodder for law review articles. As Chief Justice, at least, I don't think Rehnquist saw the work of the Court that way. As a result, his opinions often didn't give the academics and other court watchers what they wanted to see.

  Finally, a brief note about Rehnquist's likely replacement. My guess is that Bush will want John Roberts to take the Chief slot. For a number of reasons, Roberts is a natural for the job. Lyle Denniston speculates that nominating Roberts for the Chief spot is improbable given the timing of his confirmation hearings, scheduled to begin next week. I look at it a bit differently. My sense is that the Bush team is pretty savvy about judicial issues. They presumably know that whatever the near-term practical difficulties that may come with renominating Roberts for the Chief slot, the long-term impact on the Court will far outweigh them. So I would expect Roberts to end up with the nomination for the Chief position.
Jonathan M (mail):
I think you are right. I think Bush will nominate Roberts for Chief Justice; why have 3 confirmation hearings when 2 will do?

To be perfectly honest, I think it would be better to confirm Roberts now, then wait for Stevens(85) to retire given his age and have yet another confirmation hearing.
9.4.2005 2:10pm
jgshapiro (mail):
Rehnquist was very much a legal realist. He knew that the Court wasn't likely to be bound by grand jurisprudential statements expressed in prior opinions, so he figured there wasn't much point in making those statements

This is the charitable view of his jurisprudence. The less charitable view is that he figured that the Court had the power (by virtue of being at the peak of the judiciary) to impose its will, and the Court did not need to provide a complete explanation of its decisions because the decisions were binding on lower courts regardless. Why bother to explain when you have the power to dictate the result? Explanation is only necessary when you need (or want) to persuade the reader you are correct, not when you have the power to tell them so.

To be sure, the Court is not technically *bound* by grand jurisrudential statements if they choose not to be, but they can choose to follow a consistent approach even if they cannot be forced to do so.
9.4.2005 2:16pm
Kyle Still (mail) (www):
I think Fred Thompson is going to be nominated to the CJ position.
9.4.2005 2:20pm
jgshapiro (mail):
My sense is that Bush will want John Roberts to take the Chief slot . . . Roberts is a natural for the job.

As I mentioned in a prior post, I think this is correct for political reasons as well:

1. O'Connor said in her resignation letter she is staying until her replacement is confirmed. Roberts could be confirmed in the next month; no one else could be confirmed before November at the earliest, probably December. If Roberts replaces O'Connor, there is a vacancy on the Court for the first half of the term. If Roberts replaces Rehnquist, the Court will have 9 justices throughout the term since O'Connor will serve until her replacement is sworn in.

2. O'Connor also said in a post resignation interview she did not think Bush would name a woman to be CJ. I doubt Bush wants to have Ginsburg as the only woman on the Court, but he is unlikely to get a third vacancy to fill in the next two years and a vacancy in 2008 would probably not be fillable until Bush was gone. If he names Roberts to be CJ, he can name a woman to replace O'Connor. If not, and O'Connor is correct that he would not name a woman to be CJ, there are no Republican appointed women on the court for at least the next 3 years, if not the next 7 or 11+.
9.4.2005 2:23pm
Challenge:
I think you are wrong. He will nominate a minority or woman (or a minority woman). Or he will nominate Scalia or Thomas as chief and a minority or woman (or a minority woman) to fill the extra associate justice spot.

I think nominating current justices as CJ is a good practice, and it should continue. Roberts may be the perfect pick with respect to temperment, but for a number of reasons, namely his limited paper trail, it would be unwise to elevate him to the stature of Chief Justice when his jurisprudence is largely unknown.
9.4.2005 2:57pm
frankcross (mail):
Roberts for Chief is sensible, but don't downplay the timing problems. Stalling this nomination could leave a seven member Court that's more liberal than Bush would like.

Why not first get Roberts confirmed as an associate justice and on the Court, then find a replacement for Rehnquist and simultaneously nominate the now Justice Roberts for Chief, with the replacement nominated for associate?
9.4.2005 3:02pm
Thinker:
I just returned from vacation. Ironically, on the beach, I read Rehnquist's one volume Supreme Court history / memoir. The volume isn't really all that impressive. It meanders a little; it tends to be repetitive; it feels like a series of essays molded into a book.

Paradoxically, it was a great read! It contained hidden facts and tid-bits that I'd never heard before (Judah Benjamin was offered a Supreme Court slot?, etc.) Rehnquists' passion for the court and historical understanding of his position comes through. I came to believe that there was a great deal more going on in this man that can be gleened from his opinions or listening to his plain-spoken interviews. And suddenly he was gone.

I tend to believe he will prove to have been underrated and underestimated.
9.4.2005 3:06pm
zaoem (mail):
"Stalling this nomination could leave a seven member Court that's more liberal than Bush would like."

Actually, Sandra Day O'Connor will continue to serve until a replacement is appointed, so making Roberts chief may more quickly fill the slots. Don't underestimate the role of Democrats in this either. While they can't and won't block a Roberts nomination, they could threaten to stall if they decide that Roberts as Chief for the next 40 years or so is undesirable.
9.4.2005 3:09pm
Matt (mail) (www):
I bet you're right. The Chief potentially holds an immense power over the court, and a lot of that power depends on personality.

By all accounts, Roberts is compelling, especially in his personal relationships. That's exactly the kind of person that can shape the Court in the long term, maybe even in the way Federalist John Marshall shaped the Court despite years of Antifederalist appointments.
9.4.2005 3:10pm
Jim Rhoads (mail):
I agree with Oren that Roberts is the best available candidate in temperament and legal acumen for the CJ slot. Far better qualifications in these respects than any CJ before Rehnquist since Stone.

I also agree with frankcross on the tactics. Keeping the momentum and getting Roberts confirmed is priority one. It will then be virtually impossible to make a principled argument to filibuster him for Chief. A reliably conservative woman associate Justice completes the picture.
9.4.2005 3:11pm
Jim Rhoads (mail):
Sorry for the typo on Orin's name
9.4.2005 3:12pm
pundit:
Given that Roberts was the latest ideological "mystery man" as of about four weeks ago, wouldn't Bush be taking a big risk by making him CJ? Souter II?
9.4.2005 3:24pm
Gene Vilensky (mail) (www):
Orin,

Why not McConnell? I understand that McConnell has some baggage and the left dislikes him, but he will be replacing Rehnquist and presumably the left won't be as upset. Recall that one of the talking points of Chemerinsky, et al.'s letter to Arlen Specter is that Roberts is replacing O'Connor who was a swing vote.

Also, I think as a practical matter, the academics who signed the letter in favor of McConnell will have a hard time backing down from it. Of course, they did say in the letter that they're only supporting him for the Circuit Court because he is bound by precedent there and so, won't reverse Supreme Court precedents that the left likes. But, I'm not sure that the American public will really care about this distinction, and so it would be very very hard to pull a Bork on McConnell.

As for who I would like to see as Chief, I think the best bet is Posner. As someone on PrawfsBlawg once said, "How can you Bork the greatest jurist of our time?" But that's clearly not happening. Posner is pro-gay rights, some drug legalization, and is pro-choice.
9.4.2005 3:26pm
JonC:
Re: speculation that Roberts will be nominated for CJ and O'Connor will stay on for a while longer, Tom Goldstein of SCOTUSblog has already offered a good reason why the latter is improbable:

"There is some discussion of Justice O'Connor potentially remaining on the Court. That seems to me exceedingly unlikely because it doesn't provide any practical benefit. Justice O'Connor's vote in a case would only count if she were on the Court when the case was decided, not merely when it was argued. Because the President will want to name a successor for the Chief soon, rather than waiting until next summer when the Court's Term ends, it makes little sense for Justice O'Connor to remain."

In any event, the next few months are going to be quite a bumpy ride.
9.4.2005 3:48pm
Jeremy (mail):
Bush should probably double-nominate Roberts as CJ but leave him as Sandra Day's replacement. That leaves Bush a bit more operating room in replacing Rehnquist with a solid conservative.

The notion that anyone outside of high falutin' legal circles cares about (or even knows about) the gender of SCOTUS nominees is ludicrous. If the most qualified person in the land is a woman, so be it. If the most qualified person in the land is a man, so be it.
9.4.2005 3:49pm
NickM (mail) (www):
I believe Judge Edith Clement of the Fifth Circuit (from LA) will be the next person nominated. Bush was comfortable enough with her before that she was a finalist for the nomination given to Roberts, and politically, the timing bodes well for nominating a woman from Louisiana.

Nick
9.4.2005 4:35pm
Andy (mail) (www):
Jeremy: "The notion that anyone outside of high falutin' legal circles cares about (or even knows about) the gender of SCOTUS nominees is ludicrous. If the most qualified person in the land is a woman, so be it. If the most qualified person in the land is a man, so be it."

Unfortunately, I don't believe this to be true. McConnell (or Roberts or Luttig for that matter) may be highly qualified jurists, but the SC confirmation has become so politicized that as with everything in politics, appearance counts. If Bush gets only two nominees, and they both are white men, can't you see the 2008 Democratic nominee saying at the convention (to thunderous applause) "And when I am president, I will appoint a Supreme Court that looks like America!"
9.4.2005 5:09pm
Stephen M (Ethesis) (mail) (www):
Judge Edith Clement -- her name came up today at Church, brought up by non-lawyers. That was interesting.
9.4.2005 5:13pm
JonC:
Andy:

I think you're being a little naive on this point. It wasn't as if nominating Clarence Thomas suddenly convinced scores of African-Americans to abandon the Democratic party. Other than those who are already predisposed to care about such things, the racial politics of Presidential appointments, judicial or otherwise, doesn't seem to have any sort of real substantial effects in the real world.

The DNC faithful in 2008 can be expected to reliably applaud whatever applause lines their nominee places before them. That should not be a reason for Bush to relax the standards for picking a fully qualified justice.
9.4.2005 5:42pm
Frank Drackman (mail):
In the spirit of cooperation, I would like to see President Bush nominate either Senators Byrd or Edward Kennedy for the Chief Justice position. It gets them out of the Senate,and with the recent examples of Souter and Anthony Kennedy,they probably wouldnt be any worse. It would also make for great TV letting them explain their past behavior. President Nixon briefly considered nominating Byrd in 1971 when his initial candidates ran into difficulty and I believe ended up nominating Rehnquist. Serioulsly, I think W should have some gonads and nominate Scalia or Thomas for the CJ position,and let the chips fall whereever.
9.4.2005 6:39pm
Jeremy (mail):
Andy,

My point, amplified by JonC, is this: anyone who cares at all about the gender of SCOTUS members almost certainly already knows who he or she will vote for for president in 2008.

While the gender (or race) of a Supreme Court nominee is probably irrelevant from an electoral point of view, the jurisprudence of such a nominee is not. A great way to lose the base is to put a moderate nominee on the court. Note that Democrat presidents never make this mistake and always nominate firmly liberal judges.
9.4.2005 6:40pm
TCO (mail):
It would be a smart move in terms of results and feasible in terms of the politics for Bush to nominate Roberts for CJ. Therefore, it will not happen.
9.4.2005 8:09pm
Thinker:

President Nixon briefly considered nominating Byrd in 1971 when his initial candidates ran into difficulty and I believe ended up nominating Rehnquist.


Ironically, Nixon only wanted to nominate Byrd as the "Nuclear Option" against the democratic senate. In the early 70s Byrd was simultaneously powerful and unpopular regarding his Democratic colleagues. Facing a Byrd nomination - they had all bad options. If denied, there would be hell to pay on return to the senate. If approved, they'd get a conservative justice, former clansman, and in-name democrat. Nixon's tapes are almost comical on this point. He was gleeful.

I doubt there's any such political option like that today that would motivate someone like Bush. Bush isn't as conniving. Also, in the 1970s the "living constitution" wasn't striding as firmly as today.
9.4.2005 9:23pm
Craig Oren (mail):
If RN considered Byrd, it would have been in 1970, after the Haynesworth and Carswell nominations were rejected. That seat eventually went to non-controversial Harry Blackmun.

Rehnquist and Powell were nominated after Harlan and Black left the court, and both easily got through the Senate.
9.4.2005 9:59pm
Daniel Chapman (mail):
I wouldn't say it's the result of a lack of resolve that makes republicans often end up putting moderates (or liberals) on the court while democrats routinely get exactly what they want. Rather, it's the nature of judicial conservatism.

Judicial conservatism requires the modesty to recognize that your job is to put your personal feelings behind you and apply the law as written even if you think it's unjust or poorly thought out. Once a person has been given life tenure and the power to make sweeping changes to society, it's hard to keep that modesty. That's why Nixon warned Blackmun about how tempting it would be to try to please the beltway elite once he came to DC. In the end, very few, if any, justices become MORE conservative once they assume the bench.

If you believe the Supreme Court is supposed to use its power to make policy and press for social change, then it's not hard to find someone who believes in using their power. Democrats looking for judicial liberals just don't face the same challenge as Republicans looking for another Rehnquist (He should be the model, in my opinion...)
9.4.2005 10:39pm
Splunge (mail):
I predict Scalia or Thomas as CJ, because Roberts will be vulnerable to the charge of being "too young" to be Chief, and switching his role mid-stream will seem vaguely sneaky. Then as the new Associate a minority and/or woman with a slightly longer paper trail than Roberts, but not too long, probably from the South, probably not nearly as didactic, eloquent or voluble as anyone in the law academy would like. I think GWB has little use for well-crafted rhetoric in support of lovely high principles, and values integrity, energy and loyalty far higher.

No way the donks have the energy or resources to fight a two-front war, one against Scalia or Thomas as CJ and one against the "extremist" fake-minority and/or fake-woman that GWB nominates as the new Associate. There will be some agonizing, but I predict they'll concentrate on the new justice, and, recognizing that the Chief doesn't do that much and he's already on the Court anyway, let the nomination to CJ of anyone already on the Court slide.

As someone else already pointed out, the timing is good for a Southern appointment. I also think it's good for a bland, workmanlike candidate. I suspect a public horrified by Katrina is going to have less patience with hysteria and grandstanding on either side, especially if it slows down the business of the Senate (including hurricane relief), and will support the appearance of a solid, no-nonsense candidate nominated and approved in a low-key businesslike manner.
9.4.2005 11:38pm
Thinker:

If RN considered Byrd, it would have been in 1970, after the Haynesworth and Carswell nominations were rejected. That seat eventually went to non-controversial Harry Blackmun.


According to John Dean's book - Byrd was being tossed around - almost out of malice - by Nixon very early on - but largely as a reaction to Haynesworth. He was considered all the way up until Rehnquist accepted. Of course, the man who blew his chance for getting Rehnquists seat by not saying "Yes" for three days?
Ans: Howard Baker.

Here's a better question: Politically, is there any Senator (or Congressman for that matter) who could make the Bush "short list"?? The appointment of politicians has paradoxically fallen out of favor at a time when the court appointment process has become more political!!!
9.5.2005 12:07am
Thinker:

I predict Scalia or Thomas as CJ, because Roberts will be vulnerable to the charge of being "too young" to be Chief, and switching his role mid-stream will seem vaguely sneaky.


I just can't see Thomas as CJ under any scenario. Regardless of his race or performance on the court, I can't imagine that the White House would want that circus brought to their doorstep. Also, Thomas is mute in oral argument. Hardly a good CJ characteristic. Remember, the CJ's only real function is to lead combined court functions.
9.5.2005 12:32am
Clint:
Does no one else think that TWO YEARS as a circuit court judge is too little experience for a Chief Justice?

For comparison, Edith Clement has been on a circuit court for fourteen years.
9.5.2005 1:06am
Gene Vilensky (mail) (www):
I think Scalia is a substantial possibility. Harry Reid and others have already said that Scalia is a model justice and would be a great Chief candidate. It would be tough to back away from that now. Furthermore, since Roberts will sail through, this will leave an opening for Bush to nominate a very conservative academic like McConnell to replace Scalia. Since Scalia is considered the most conservative of the justices, McConnell replacing him doesn't seem like a big deal. Remember, the Democrats have argued that Roberts ought be scrutinized since he's replacing O'Connor, the swing vote. So, a replacement for Scalia would not be subjec to such scrutiny.

One problem, however, is that I am not sure how effective of a chief Scalia would be. His dissents are brutal to the other side (and I think quite good and difficult to argue with). I am not sure what good will he has from the liberals and moderates on the court. On the other hand, if McConnell is nominated to replace him, he and Roberts could serve as a bridge in bringing moderates like Kennedy into the fold. I don't know. Interesting strategy for the Bushies to consider.
9.5.2005 1:08am
Syd (mail):
I think Roberts is a likely possibility, too. And two years as a circuit judge is two more than Marshall or Warren had.

I wonder, though, does Edith Clement have the personality to be Chief Justice?
9.5.2005 1:46am
Andy (mail) (www):
JonC: "I think you're being a little naive on this point. It wasn't as if nominating Clarence Thomas suddenly convinced scores of African-Americans to abandon the Democratic party."

The issue isn't whether by nominating Thomas the Republicans were able to pick up more African-American votes. The issue is whether they will be able to continue to pick up votes from white (and minority) swing voters. If you haven't noticed, race is one issue the Dems love to hammer to GOP about--see Howard Dean's most recent remarks-- and as long as the GOP can put up non-white faces as representatives, they can sucessfully parry these affronts.

Jeremy: "anyone who cares at all about the gender of SCOTUS members almost certainly already knows who he or she will vote for for president in 2008. "

Funny, I just had a conversation tonight with some friends who generally don't follow politics. One woman remarked that she had no idea who will be running in 2008, but she did express how important it was for Bush to appoint a woman to the court (because she was under the impression that O'Connor was the only woman on the court, and without her, it would be all male.) Now, you may laugh, but I have a feeling there are lots of other women (and men) who have very similar "gut reactions" to the President's appointees- they wouldn't know an originalist from an organ grinder but would like the idea of the Supreme Court fitting some notion of "diversity" simply because that is what they believe is the right thing to do.

"A great way to lose the base is to put a moderate nominee on the court. Note that Democrat presidents never make this mistake and always nominate firmly liberal judges."

I doubt that the GOP base would desert Bush if he chose Clement (or similarly Garza). Also, I disagree with the second part of this statement: few liberals would comfortably put Kennedy appointee (and Roe-dissenter) Byron White as one in their column. And I'm not sure you could even use "firmly" as a modifier for the two Clinton appointees: I don't see Maxine Waters jumping for joy over their decisions in Raich and Kelo.
9.5.2005 2:50am
jgshapiro (mail):
Andy/JonC:

I think the issue of a woman appointee goes beyond the additional votes it would (or would not) produce.

When you have only one person on the Court who is a member of a distinct demographic group, it is natural (if inaccurate) for people to assume that that person's views are representative of the group's. I think that is the real problem the left has with Clarence Thomas: not the Anita Hill mess, or the fact that he doesn't ask questions at oral argument, or his disregard for stare decisis, or any of the other pretexts; but the fact that as the only minority on the Court, some people see his vote as representing how a typical minority (or black) judge would view that case.

The issue is the same for Republicans and Ginsburg. Do they want her views to be seen as being the views of a typical female judge, or just those of a judge from the left? If she is the only woman on the Court, many people will take her views as the former. If you put Clement, or Jones, or another conservative woman on the Court, that problem disappears.
9.5.2005 5:31am
Andy (mail) (www):
jgshapiro- I agree. In a way, this argument is similar to O'Connor's legal reasoning in parsing the Michigan affirmative action cases. I doubt anyone (not on the extreme ends of the political spectrum) would favor establishing a mandatory numerical rule requiring there to be a woman's seat, or Black seat, or any other similar "diversity" seat on the court. On the other hand, I suspect that there are many out there (among both parties) that do think that there are many valid reasons why having what is perceived as diversity on the SC is a good idea. (Although don't hold me to ascribing to the 25-year statute of limitations implied in her reasoning...)
9.5.2005 11:16am
dk35 (mail):
For an excellent discussion of Rehnquist (and the current dangers of the American conservative movement), I recommend the comment of Alan Dershowitz here: .
9.5.2005 12:40pm
dk35 (mail):
Sorry, I guess the website reference was not posted on previous comment. You can find it at www.huffingtonpost.com. The title of Dershowitz' comment is "Telling the Truth About Chief Justice Rehnquist." Very informative.
9.5.2005 12:43pm
Daniel Chapman (mail):
I think that's the first time anyone's dropped the H-bomb here.
9.5.2005 1:49pm
TCO (mail):
I take credit.
9.5.2005 9:16pm