ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

If President Bush is going to make a recess appointment of a new Chief Justice, he'd better be prompt. The Senate will be back in session at noon on Tuesday. A recess appointment might well be the best way to go, and then the nomination of John Roberts could go forward for the O'Connor seat.

Tom Goldstein put it this way at SCOTUS Blog:

[I]t is in the President's interest not to couple the process of confirming the successors to Justice O'Connor and the Chief Justice. Democrats have a stronger argument against a conservative successor to the Chief if the nominations are perceived as a package. If the process of confirming a successor for the Chief remains separate and distinct, it is easier for the President to maintain that a conservative appointment to succeed the very conservative William Rehnquist will not move the Court further to the right. So I think that the hearings will likely move forward.

Also at SCOTUS Blog, Lyle Denniston pointed out the possibility of a recess appointment:

It is possible, of course, that the President could provide a temporary replacement for Rehnquist....A recess appointee could serve until the end of the current Congress -- that is, until January of 2007. The death of Chief Justice Rehnquist necessitates unprecedented leadership among "conservatives" in the Senate. The left will immediately commence a battle, the likes of which have never before been seen.

I would predict, therefore, that President Bush will very soon make a recess appointment of a new Chief Justice, probably from outside the Supreme Court, along the lines of Jones, Luttig, Garza, or Owen. I don't think that there will be any elevation of an associate justice, but that could be done by recess appointment too (and probably without the elevated Justice losing lifetime membership in the Supreme Court). Here's some info from Wikipedia about Justices Scalia and Thomas:

Justice Antonin Scalia (born March 11, 1936) has been a U.S. Supreme Court Associate Justice since 1986. He is widely considered the leading judicially conservative voice on the Court and one of the most forceful modern advocates of originalism and the plain meaning rule. With the recent death of Chief Justice William Rehnquist, it is widely speculated that Justice Scalia will be President Bush's nominee to replace Rehnquist as the Chief Justice, although this would be unusual as presidents have traditionally appointed Chief Justices from outside the court....

Justice Clarence Thomas (born June 23, 1948) has been an Associate Justice of the Supreme Court of the United States since 1991. He is considered to be part of the "conservative wing" in the current court. He is the second African-American to serve on the nation's highest court and, as of 2005, is the youngest justice by nearly nine years.

Justice Scalia is very smart and wise, but his abilities as a consensus builder are open to question, given his sometimes blunt opinions. How well could he manage a cohesive conservative court? Hard to say. At age 69, he would probably have a shorter tenure than a younger nominee. Justice Thomas is also smart and wise, but understandably reluctant to have another experience in the Senate Judiciary Committee.

A potential downside to elevating either Justices Scalia or Thomas would be that Democrats who vote for them could thereby counter the charge that they wouldn't vote for a conservative --- and Democrats could do so without really altering the balance on the Court at all. Having approved a Chief Justice Scalia or Thomas, Democrats could then more easily oppose a conservative to fill the old seat of Scalia or Thomas.