Just a little over twelve hours ago, I wrote this.

There is also, of course, speculation on a possible replacement. I think any number of things could happen, from elevating a sitting justice to the center chair, making Roberts the nominee for Chief Justice, recess appointing O'Connor to the Chief Justiceship (unlikely), or the selection of a candidate from off the Court. I'm genuinely not sure what the President will do, but there are any number of combinations of scenarios. Let's give the matter some time to clarify itself.

I had no way of knowing it, but John Roberts was already meting with George W. Bush in the residence of the White House. First thing this morning, the President made and announced a change of plans -- John Roberts is the nominee to replace his friend and mentor, Chief Justice William Rehnquist (whose death is still difficult to wrap my mind and heart around).

I think this is a good choice, designed to ensure a bit of stability at the Supreme Court.

First, there is absolutely no reason that John Roberts cannot be confirmed by the start of October -- it may sound mundane, but the paperwork and investigations are complete for this nomination. The White House says, and I cannot doubt, that this possibility was already in mind at the time of Judge Roberts' appointment to be the Associate Justice seat held by Sandra Day O'Connor.

Second, this move avoids the problems that exist with an eight member Court. Given that Justice O'Connor made her resignation conditional upon the confirmation of a successor, this "upgrade" of the Roberts nomination will result in a full Supreme Court on the first Monday in October. O'Connor will therefore stay on until a replacement is found and confirmed, and there will be no 4-4 decisions (case affirmed, but no precedent value) or reargument of cases after the new member joins the Court.

Third, it allows the casting of a wider net for nominees. The president now has some breathing room to look at potential nominees. A successor to Justice O'Connor need not be selected before Thanksgiving -- or even before Easter. While she was ready to move on, I suspect that Sandra Day O'Connor will have no objection to staying on the Supreme Court for the entire first term of the Roberts Court, in large part out of consideration for the man who was such a key part of her own confirmation process during the Reagan Administration. In the interim, certain recently confirmed appellate judges (Judge Janice Rogers Brown, for example) will have had time to prove themselves as ready to "step-up" to the Supeme Court.

The article from teh AP contains two items I want to comment upon. The first regards the role of the Chief Justice, and the desire to keep its power and authority out of the hands of Justice John Paul Stevens.

Getting a new chief justice of Bush's choosing in place quickly also avoids the scenario of having liberal Justice John Paul Stevens making the decisions about whom to assign cases to and making other decisions that could influence court deliberations. As the court's senior justice, Stevens would take over Rehnquist's administrative duties until a new chief is confirmed.

I've got to disagree there. While a Chief Justice can assign opinions where he is in the majority, any justice can write and circulate an opinion. The chambers of Justice Scalia, for example, churn out a great many dissenting and concurring opinions. But as students of the Supreme Court know, the mere fact that the initial assignment goes to a particular justice does not prevent another justice (even one in the original minority) from garnering enough votes to become the author of the eventual majority opinion. Add to that the process of negotiation that goes into securing a majority, and the influence of the Chief Justice in making assignments is less a factor than it might appear. Also, the bulk of the Chief Justice's extra duties are administrative -- overseeing the day-to-day functioning of the Court. Those tasks don't significantly change, regardless of the judicial philosophy of the chief justice.

Also, there is an error in the article.

The last time a president chose a chief justice outside the court was half a century ago, when Earl Warren was selected by President Dwight D. Eisenhower.

Wrong! Richard Nixon nominated Warren Burger to sit in the center chair in 1969. He was not a Supreme Court Justice, but a federal appellate judge.

But while we are on the subject of Earl Warren, his tenure as Chief Justice should slam the door on critics who say Roberts lacks the judicial experience to succeed Rehnquist. Warren, after all, had never been a judge prior to becoming chief justice -- but is generally counted as a great or near-great justice by court historians.

As usual, great stuff may be found by Michelle Malkin. The crew at Southen Appeal is also checking in this morning. So is ConfirmThem.com, with several good posts. The Supreme Court Nomination Blog also posts several pieces, as does SCOTUSBlog.

Posted by: Greg at 02:17 AM | Comments (1) | Add Comment
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