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.
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.
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.
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.
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+.
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.
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?
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.
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.
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.
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.
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.
"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.
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.
Nick
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!"
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.
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.
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.
Rehnquist and Powell were nominated after Harlan and Black left the court, and both easily got through the Senate.
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...)
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.
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!!!
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.
For comparison, Edith Clement has been on a circuit court for fourteen years.
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.
I wonder, though, does Edith Clement have the personality to be Chief Justice?
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.
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.