Chief Justice Rehnquist

For those who missed it, Chief Justice William Rehnquist has died.



Go in peace, sir. Fare thee well where ever you may be. You will be missed.

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Tactically, the president now has to choose whether he wants two fights or three. As I have said before, I'm a big admirer of Justice Thomas, but I can't see anyone wanting to rehash the whole Anita Hill thing when it does him no good beyond prestige.



Scalia would be, if anything, a tougher fight than Thomas to elevate. Has a strong claim to being the foremost constitutional scholar, but he's written too many opinions, and too many Donkeys really have something personal against him. The whole hunting trip with Cheney would come up again and again ad nauseum, and everything he ever said against abortion or for personal responsibility or the intent of the framers. Nasty fight, nothing significant to gain.



The president could either re-nominate Roberts for the chief's seat, or nominate another justice direct to the chief's seat (Janice Rogers Brown springs to mind as appropriate for this).



Finally, the president might make a deal. He'll elevate one of Clinton's associates to chief in return for enough votes to confirm his favorite new associate justice. I think if the President made a deal to elevate Ginsburg in exchange for Luttig or some similar conservative, this might be his biggest gain for the least fight. Roberts is so squeaky clean there's nothing to fight, but he's only got two years on the bench, which would produce a certain prejudice against making him Chief Justice. Anyone else, particularly anyone attractive to conservatives, is going to have a fight on their hands UNLESS the president can short circuit it. This isn't the nomination that's likely to overturn Roe vs. Wade; the Chief was a steady vote to overturn. At most, the struggle to overturn breaks even.



This suggestion gets a woman Chief Justice, so the donkeys have something to feed their base. It doesn't make any real difference to the balance of the court, and the President gets easy confirmation for a judge of his choice.



I don't know that he'll do this of course. It's certainly harder with the excessive partisanship of late, which is the constraint the president is working against. In another era, this would have been a much easier deal to actually do. But if he can keep the Republican senators in line and get Joe Lieberman and a few others to sign off on the deal, this would be a win for everyone.



UPDATE: The President has renominated Roberts for Chief Justice. I can't fault his reasoning, but others will. With only two years on the Judiciary, naming him as the foremost judge in the nation raises a psychological bar, no matter how qualified. Never mind that a Chief Justice has no more real authority than an Associate Justice. There is a psychological difference between being one of the gang and being the titular leader. It is possible this will snatch defeat from the jaws of victory on Roberts' confirmation. There is no vacancy (currently) in O'Connor's seat. Her resignation was effective upon confirmation of successor. Barring further developments, should Roberts be confirmed to Rehnquist's chair, we'll have a full court when it starts its term, whether or not O'Connor's replacement is there.