Rehnquist's death, and what comes next

Two months ago, we knew that George W. Bush would have another Supreme Court opening soon. Now, amid Katrina, the news comes as a shock.

By T.g.

Published September 4, 2005 4:31PM (EDT)

It is a measure of the scale of Katrina that the death of the chief justice doesn't really register. For months now, we've all known that George W. Bush would have another opening on the Supreme Court soon. But word of William Rehnquist's death came last night like a dispatch from some other time or some other part of the world. It didn't scan then, and it's still a little hard to get our minds around it now.

When Sandra Day O'Connor retired on July 1, People for the American Way released a statement within minutes in which it urged Bush to "to reject the demands of far-right leaders for an aggressively activist ideologue who would ensure a divisive confirmation battle." This morning, PFAW released a much more muted statement about Rehnquist. After extending its condolences to Rehnquist's friends, family and colleagues and remembering his "love for the court," PFAW said: "The chief justices death comes at a moment of great crisis in our nation. We are all witness to the overwhelming human needs that require the full attention of our leaders. The character and strength of our nation will be defined by our response to the tragedies unfolding in the aftermath of Hurricane Katrina."

Although Bush said this morning that he would move "promptly" to name Rehnquist's replacement, PFAW urged Washington to move cautiously. "The very nature of our constitutional system of government is in the balance," the group said. "While the long-term consequences of two new justices will be monumental, filling the vacancies on the Supreme Court is not an emergency requiring hasty action. Indeed, at this moment in our history, with so much at stake, the president and the Senate should proceed with great care and deliberation."

The bigger question, of course, is not when Bush will replace Rehnquist, but how. The president has a choice. He can elevate a sitting justice -- say, Antonin Scalia -- to serve as chief justice, then nominate an outsider to fill the associate justice opening that would result. Or he can name an outsider to replace Rehnquist as chief. Through history, most presidents have taken the latter route, although Rehnquist was elevated from inside the court in 1986.

Beyond that choice, there are mostly questions today. Is John G. Roberts -- whose confirmation hearings are scheduled to begin Tuesday -- gift enough to the religious right? Or is Roberts the "moderate" part of the two-part package Bush knew he'd have someday? Is the more Christianist-appeasing nominee, someone like Priscilla Owen, still to come? Is Alberto Gonzales, recently confirmed as attorney general, someone Bush thinks he could get through the Senate quickly? What about Texas Sen. John Cornyn? Is it safe to assume that the candidates Bush is said to have interviewed for O'Connor's seat -- J. Harvie Wilkinson III, Edith Clement, Edith Jones and J. Michael Luttig -- are the ones he'll consider this time around? Will the blowback from Hurricane Katrina prod Bush into naming an African-American as chief justice (Clarence Thomas) or as an associate justice (Janice Rogers Brown)? Or will Bush use the crisis on the Gulf Coast as an excuse for ramming a nominee through the Senate as some sort of imagined solution to an emergency?

And what about Sandra Day O'Connor? While the chairman and the ranking Democrat on the Senate Judiciary Committee are meeting today -- presumably to discuss the possibility of putting off the confirmation hearings on Roberts -- Connecticut Sen. Christopher Dodd raised the possibility today of asking O'Connor to remain on the court at least until January to give the president and the Senate time to work though the process to come in a more deliberative fashion.

By T.g.


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