I am greatly saddened by the death of the Chief Justice. I am still rather young - and for me this is big news - much akin to the death of Pope John Paul II. Rehnquist was the only Chief I really remember - I was still much too young to be paying attention when he rose to the seat in 1986.
Of course, much over the next few days will be about the Chief, and I do not seek to diminish his immense impact and extraordinary legacy, but I will look ahead to the future.
One thing that is certain is that the Chief's replacement will not be confirmed prior to the commencement of the 2005 Term (unless the President converted the Roberts nomination to a nomination to Rehnquist's Chief seat and sought someone else for the O'Connor Associate seat - not impossible, but not probable). Given that, the President should wait to make a nomination until the Roberts hearings are completed. I think that will allow the President a more conservative choice without jeopardizing Roberts, or letting Democrats wrap Roberts into a package deal. Having proved in hearings that Roberts is an eminently reasonable choice, they will be hard-pressed to hold him up based on the second choice.
The President also should resist the temptation to play the cronyism card and name Gonzales to the seat. The base will not be much enamored with a trade of the conservative Rehnquist for the mushy moderate Gonzales. Of course, we already have a short list, it's much the same as the one that came up earlier this summer - and we know that the White House has prepared for Rehnquist's departure (though they were expecting a retirement not a death). So a name will emerge fairly quickly.
My own proposal actually draws on the unlikely conversion option. I don't know - but in the absence of a Chief, I would assume the Court would be "run" by the senior Associate - that would be Stevens. Even as a stand-in I dislike this idea to no end. Thus, Roberts should be named to Rehnquist's seat as Chief. Nothing in the calendar has to change - and it would provide that there be a Chief in place come October and that there would also be a full complement of nine justices (since O'Connor's retirement doesn't take effect until her replacement is confirmed). Keep O'Connor for another month or two while the Senate does its work on a second nominee. For that seat I would actually love to see Edith Jones - twice passed over now. While many clamor for Janice Rogers Brown - I think that exuberance is misplaced - she has yet to decide a case on the DC Circuit, and until we actually see her in a federal setting, we can't be certain how her decisions will come out. Too many issues like federalism, separation of powers, executive powers, etc., don't come up at the state level and Brown has no track record. Jones has been a federal appellate judge for 20 years and is a solid commodity.
Of course, we also must now acknowledge that the legislative business of the country will practically cease for the year. By the time the Senate works out this second seat it will be November and the holiday recesses will roll around. It's disappointing, but the air will be sucked out of everything else while we all talk about the second round to follow the Roberts process. I suppose it will be an even more interesting fall than originally thought.
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