My Question for the New Chief

Things do tend to pile up. Chief Justice William Rehnquist's passing yesterday should not have been a great surprise, though the Chief's insistence earlier this summer that he would stay on in the post as long as he was able did tend to reassure us that he would, at the least, be on the Court into the upcoming term.

Instead, it appears that Judge John Roberts, lately nominated for Justice O'Connor's seat, will instead go through his confirmation hearings (beginning tomorrow) as a Chief Justice nominee. This puts to rest all the speculation that Bush might name Justice Scalia to the Chief Justice position. This is also only sensible, as naming a sitting Justice to CJ means two nomination hearings for only one new Justice. Bush has played this hand wisely.

Take a jump for more.

That this hand was dealt at all is still something of a surprise, albeit a little one. But perhaps the Chief knew something we didn't. Rehnquist was a major opponent of the idea of limiting the terms of Supreme Court justices. He wrote at length on the necessity of independence in the judiciary, and said only lifetime appointments provided that. And indeed, Rehnquist continued to serve on the Court, to take an active role in oral arguments, and to discuss, vote on, and write opinions, through the end of his last term on the Court. If he knew that the end was near, but still felt able to perform his duties, why would he have stepped down? I believe Rehnquist's final weeks were, as much as anything, the capstone of his argument for lifetime appointments. Look, he was saying, I can still do my job. I have been here for a long time, and I am old, and I am not well, by my mind is sharp and I can still do this job.

Whatever the famously private Rehnquist may have been thinking, he has passed on. A state funeral is no doubt in the offing and there will be a lot of talk in the next few days, when the cable channels can break away from hurricane coverage, about Rehnquist's legacy. I cannot speak to that legacy. But we do know that some things will change on the Court.

The Chief Justice (of the United States, which is the correct title, not "Chief Justice of the Supreme Court" as Bush says) does not have a great deal more responsibility than the Associate Justices. He presides over the Court's oral argument sessions. When the members of the Court meet to discuss cases, the Chief runs the meetings. And the Chief is responsible for selecting which Justice in the majority will write the Court's opinion (and when he's in the minority, the Chief assigns the writing of the dissent). These roles are capably filled by other members of the Court; Justices Stevens and O'Connor both presided at oral argument during the last term, while Stevens (presumably) ran meetings and assigned opinions in the Chief's absence. Roberts, then, in addition to sitting as a Justice, will have these other small duties to attend to. Since he is not philosophically far removed from Rehnquist, it will seem to us on the outside that little has changed on the Court.

But there is the matter of the Court's discussion meetings. Outsiders never sit in on these meetings, and we don't honestly have any idea how the Court decides on opinions and what these meetings are like. But Rehnquist, in his books, has given us a clue at least on how he liked to run things.

Rehnquist felt, not without reason, that most Justices arrive at the meeting with their minds already made up as to how and why they would like to see each case decided. For this reason, Rehnquist ran very structured meetings with limited debate. Beginning with the Chief and then moving through the Justices in order of seniority, each Justice would speak his or her piece about the case, how it should be decided, and why. Once every Justice had a chance to speak, if so desired, the Justices would vote. After the vote, the senior Justice in the majority would assign the Court's opinion; the dissenting Justices would determine who would write the lead dissent after the meeting.

Although some Justices, notably J. Scalia, have remarked that they would prefer more free-ranging debate, it seems that this system must have worked fairly well; after all, staying on the Court is a voluntary thing and nobody retired for almost 11 years. The work environment must have been fairly nice. The great question, then, is how will Roberts run those meetings, and will that have an impact either on the number of 5-4 decisions the Court hands down or on how those decisions are decided?

That's the question I would ask Roberts, if I was in the Senate. How will you run those meetings? And why?

As an aside, it's interesting to note that because Roberts, who will technically be the junior Justice once he is confirmed (as I assume he will be), will be the Chief, the seniority will remain the same. Thus Justice Breyer will remain the junior Justice in most respects. When the next term starts up in October, Breyer will be starting his 12th term as the junior Justice, which will be a record. Fortunately for J. Breyer, a new junior Associate will be along shortly.

Just who that new Associate Justice will be remains to be seen. It seems most likely, and you can read more about this at the Supreme Court Nomination Blog, that J. O'Connor will submit a different resignation and simply leave the Court, leaving her seat vacant until the next nominee is confirmed. As the above link points out, O'Connor's staying on the Court through October, for example, would be pointless, since she would not sit to vote on any cases she might hear argued. Unless it appears the next nomination will be greatly delayed--by several months--she probably will go ahead and make her retirement immediate, rather than conditional.

And Bush will get to name another Associate Justice. This time around, Bush should be able to name a nominee very shortly, I should like to think as early as this week. He's already created a short list and interviewed most of the folks on it, and done so within just the last two months or so. I should think it a simple matter for him to then move to the next person on that short list.

Like most other speculators I was way off the last time; Roberts wasn't even on my list. But, what the heck. Let's give it another go. I'm keeping Alberto Gonzalez and Edith Jones at the top of my list. Two other 5th Circuit judges, Joy Clement and Emilio Garza, come in at numbers three and four. I going to add Michael McConnell to my top five.

And I'll put in a few other names. Ted Olson, a friend of the president and non-judge (several Senators seemed to want a non-judge last time around), is an outside possibility. So is Larry Thompson, a corporate lawyer for Pepsi right now and a former deputy Attorny General (and Bush fund-raiser). Some folks think Janice Rogers Brown will get the nod; I disagree. I'd like to think of someone like Alex Kozitsky or Frank Easterbrook, but realistically Bush is about as likely to tap one of those fellows as he is to name his wife to the court.

I reckon I'll be made a fool of again with this list, and I'd bet it'll happen by Friday.