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Saturday, September 03, 2005

Hon. William H. Rehnquist, 1924-2005

I'm genuinely saddened to hear of the passing of the Chief Justice of the United States, William H. Rehnquist. He was a credit to his country and his profession, and it's altogether fitting and in keeping with his character that he died in office rather than in retirement. Rest in peace, sir.


UPDATE (Sun Sep 4 @ 1:00am): Re-posting a couple of comments I've left on Prof. Althouse's post about Chief Justice Rehnquist's passing:

Decklin asked, "[W]hat happens now while we have eight justices? Does Roberts still replace O'Connor?

Short answer: Yes, Roberts will still probably replace O'Connor, and business will probably continue as usual; the temporary vacancy in the Chief Justice's spot is unlikely to be outcome-determinative in any particular case.

Long answer:

There is now a vacancy in the office of Chief Justice of the United States, and there are only eight members of the Supreme Court. Until the President nominates and the Senate confirms a new Chief Justice, the Supreme Court (which is currently in recess until the beginning of the October 2005 Term) will continue to operate with only eight (Associate) Justices.

Justice O'Connor is, technically, still one of those eight. Her resignation does not become effective until the Senate confirms her successor. DC Circuit Judge John Roberts is the nominee to be her successor, and unless his nomination is withdrawn by President Bush, it's reasonable to presume that the Senate will continue to deliberate on that nomination and that in due course he will be confirmed, upon which event he'll take Justice O'Connor's place among the eight Associate Justices.

It's possible, but I think fairly unlikely, that President Bush might withdraw Judge Roberts' nomination to be Justice O'Connor's successor and instead nominate him to become the new Chief Justice. Regardless, however, Justice O'Connor will continue to serve until the successor to her seat (whether Judge Roberts or someone else) is confirmed by the Senate.

I expect that President Bush will nominate a proposed new Chief Justice within the next two weeks, but it's highly unlikely that such a nominee would be confirmed by the Senate in time to be sworn in before the beginning of the Supreme Court's new term in October 2005. In all probability, the Supreme Court (with either Justice O'Connor or with new-Justice Roberts as her successor) will begin its proceedings in October with only eight members.

Senior-most Associate Justice Stevens will preside over the Court's activities until a new Chief Justice is nominated and confirmed. That's really not a very big deal; he still gets only one vote, plus the right to assign the initial drafting of proposed majority opinions on those particular cases in which he's voted with the tentative majority, but that very, very rarely affects the actual outcome of individual cases. (Indeed, Justice Stevens has already had that privilege for many years in those cases in which he was, but Chief Justice Rehnquist was not, among the tentative-majority during the preliminary post-argument vote.) Justice Stevens' temporary presidence will be mostly symbolic and procedural (and I have no doubt that he'll handle those functions superbly and noncontroversially).

If the Senate does not act promptly to confirm whomever President Bush nominates to succeed the late Chief Justice Rehnquist, Pres. Bush might well use his constitutional power to make a "recess appointment" during the next Senate recess (e.g., over the Thanksgiving holiday). The recess appointee would immediately be sworn in and begin acting as Chief Justice, subject to either later confirmation or expiration of his/her recess appointment (at year-end 2006, I think?). My guess is that the Administration will push hard to have a new Chief Justice confirmed before year-end 2005, however, and will only go the "recess appointment" route if there's a filibuster; the possibility of a recess appointment (and Pres. Bush's demonstrated willingness to use his recess appointment power, e.g., with Circuit Judges Pryor and Pickering) may make a filibuster somewhat less likely. That Chief Justice Rehnquist has been so reliably "conservative" perhaps makes a knock-down drag-out full-court filibustering fight over his successor less likely than if, for example, we were looking at replacing Justice Stevens.

When there is a 4-4 voting split on the Court with only 8 Justices participating in the vote on a particular case, the procedural effect of that tie vote is to automatically affirm the decision of the lower court (typically one of the federal [circuit] courts of appeals or a state supreme court). There's considerable informal precedent from past decades, however, for cases that are split 4-4 at the internal conference after oral argument (or, sometimes, other especially important close votes, e.g., tentative 5-3 splits) to instead be re-calendared to be re-argued and finally decided later in the term, or in the following term, when the Court is back to its full complement of nine members. It's therefore fairly unlikely that the vacancy created by Chief Justice Rehnquist's death in office will cause some extraordinary shift in precedent.

Jamie wrote, "Roberts is going to suffer for this."

Actually, I think not. My (very subjective) perception is that the poitical left is pretty frustrated with their inability to get any traction in opposing Judge Roberts' nomination. Whether Dubya decides to (a) elevate Scalia or Thomas to CJ and nominate a new Associate Justice, or (b) simply to nominate an entirely new face as CJ, or (c) even to transform Roberts' nomination to the CJ spot instead of O'Connors', there will inevitably be a new face for the opposition to shoot at. I don't think any of the other potential nominees (at least those discussed before Roberts' nomination came out) have anywhere close to the amount of Teflon sheathing that Roberts has proven to have. So I suspect that the new face, whoever that turns out to be, is who will "suffer," and that the net result of Chief Justice Rehnquist's death may be that Judge Roberts' nomination indeed turns into a complete cakewalk.

Posted by Beldar at 10:55 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Hon. William H. Rehnquist, 1924-2005 and sent a trackback ping are listed here:

» Led Supreme Court for 19 years from Unpartisan.com Political News and Blog Aggregator

Tracked on Sep 4, 2005 9:47:46 AM

» The Court: What Now? from No Oil for Pacifists

Tracked on Sep 4, 2005 12:26:10 PM


(1) Patrick R. Sullivan made the following comment | Sep 4, 2005 6:45:51 PM | Permalink

'Her resignation does not become effective until the Senate confirms her successor.'

Where will I find this in the Constitution?

(2) Steven Jens made the following comment | Sep 4, 2005 11:12:40 PM | Permalink

It's not in the constitution. It's in her resignation letter.

I was also unsurprised that Rehnquist never did resign. It was my understanding that the Court was what he lived for. His illness seemed drawn-out, and I hope he is at peace.

(3) Patrick R. Sullivan made the following comment | Sep 5, 2005 12:41:02 PM | Permalink

'It's not in the constitution. It's in her resignation letter.'

And what authority gives her the right to resign, but not resign?

(4) James B. Shearer made the following comment | Sep 6, 2005 10:09:44 AM | Permalink

I believe it is a long established tradition that Supreme Court justices can resign effective with the confirmation of a successor. For example Earl Warren did so in June 1968 and ended up serving another term when the Fortas nomination to succeed him failed.

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