ConfirmThem

By Carol Platt Liebau Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

President Bush has pledged to name a successor to Chief Justice Rehnquist quickly.

A number of questions have arisen over the last day pertaining both to the President's course of action in light of the Chief Justice's death, and the upcoming hearings on the Roberts nomination.

Among the issues being discussed on the Sunday news shows:

Should the Roberts hearings go forward as scheduled? My view: Certainly -- now more than ever, it's imperative to get Roberts confirmed and on the Court.

Should the President "change" the Roberts nomination to one for Chief Justice? My view: No. If he wishes to name John Roberts Chief Justice, he can do so later.

Should Sandra Day O'Connor stay on until both vacancies are filled? My view: No. She pledged to stay on only until her successor is seated -- and her successor is (hopefully) going to be John Roberts.

Should the President name Justice Scalia to be Chief Justice? My view: Justice Scalia is one of the most brilliant conservative minds in America today (and possibly ever). The question is whether the job of Chief Justice involves consensus building and administrative tasks with which Justice Scalia would rather not be burdened.

Should the President name Justice Thomas to be Chief Justice? My view: It would be a historic first -- an African American Chief Justice, and an interesting opportunity to watch those who call for increased "sensitivity" to African Americans in the wake of the New Orleans disaster demonstrate some hypocrisy by mistreating Justice Thomas, as they inevitably would. But it's far from clear that Justice Thomas -- a wonderful man and a great intellect -- even wants the job. Even so, wouldn't it be quaint if the Democrats tried to raise the Anita Hill issue . . . which now sounds like child's play in the post Clinton/Lewinsky era?

Nominating either Scalia or Thomas for Chief would guarantee a messy political fight -- but it's worth noting that all the left's namecalling (John Roberts hates women/civil rights/etc.) has had little impact on public opinion.

Given their strong conservative views and impressive minds, President Bush could also name the first female Chief Justice -- how about Edith Jones or Priscilla Owen of the Fifth Circuit? That being said, President Bush has been admirably reluctant simply to play racial or gender politics. And if he feels that Judge Michael Luttig of the Fourth Cicruit or Judge Michael McConnell of the Tenth Circuit is the right choice, I would be delighted. Both judges are as fine as they come, in terms of both intellect and temperament.

Other notes: As most readers are probably aware, as the longest serving justice, Justice Stevens will assume the duties of the Chief Justice until a successor is confirmed. To the extent that (once Roberts is hopefully confirmed) any decisions would come down as 4-4 ties, that would mean that the decision of the relevant appeals court would stand.