The body of William Rehnquist will lie in repose at the Supreme Court until Wednesday, when the late chief justice will be buried at Arlington National Cemetery. Plans for his replacement will be far advanced by then.
According to the Washington Post, George W. Bush is contemplating a plan to nominate John G. Roberts, already nominated to replace Sandra Day O'Connor as associate justice, as chief justice instead. With the vetting process mostly done on Roberts -- and his confirmation in the Senate seemingly assured -- such a course would ensure that there's someone in the chief justice's seat at the center of the bench when the Supreme Court hears its next case on Oct. 3.
So far as anyone can tell, there's no precedent for changing the seat for which a potential justice has been nominated, but there's nothing preventing such a switch, either. If Bush doesn't go that route, the Post says, administration sources says he's likely to choose from the same list of candidates he considered the last time around: Attorney General and former White House Counsel Alberto Gonzales; former Deputy Attorney General Larry Thompson; and federal appellate judges Edith Jones, Edith Clement, J. Harvie Wilkinson III, J. Michael Luttig, Emilio Garza and Priscilla Owen.
While Rehnquist's death wasn't expected -- his health apparently took a sudden turn for the worse in recent days -- his retirement was. Thus, as one White House official tells the Post, Bush's advisors aren't "starting from a standstill. We have a process that has been developed . . . and now we're in an execution phase." White House counselor Dan Bartlett tells the New York Times: "There is a short list, and it's being worked very hard."
If Bush were to choose Roberts to replace Rehnquist, he would be -- in at least one sense -- following the path most commonly taken by earlier presidents confronted with the chance to pick a chief justice. While a president can select a chief justice from among the sitting associate justices, presidents have done so on only a few occasions -- Rehnquist's elevation in 1986 was one -- and there's no immediately obvious candidate on the current court. With Rehnquist gone and O'Connor retiring, the remaining Republican appointees on the court are John Paul Stevens, David Souter, Anthony Kennedy, Antonin Scalia and Clarence Thomas. Stevens and Souter are far too liberal for Bush's tastes. Kennedy has enraged the religious right too often with decisions on abortion rights and homosexuality. Scalia is too old and, like Thomas, would provoke an extraordinarily nasty confirmation fight in the Senate. Nonetheless, two White House officials told the Times that Bush was at least considering the possibility of elevating either Scalia or Thomas.
Confirmation hearings for Roberts -- as O'Connor's replacement, not Rehnquist's -- were to begin Tuesday. But the White House said Sunday that it expects that the Senate will announce a postponement in those hearings soon. Roberts will be confirmed -- for something -- but there's a funeral to be held and much more to be done first.