By Tom Curry National affairs writer
updated 9/4/2005 6:11:13 PM ET 2005-09-04T22:11:13

While the death of Chief Justice Rehnquist was not a surprise, it nonetheless came as a shock.

At the White House Sunday morning, President Bush paid tribute to Rehnquist and said, “There are now two vacancies on the Supreme Court. And it will serve the best interests of the nation to fill those vacancies promptly. I will choose in a timely manner a highly qualified nominee to succeed Chief Justice Rehnquist.”

The news of Rehnquist’s death came just two days before the Senate Judiciary Committee was about to begin confirmation hearings on nominee John Roberts, slated to replace Sandra Day O’Connor, and at a time when Bush is beleaguered by allegations that he ought to have acted more decisively in dispatching troops to rescue those displaced by Hurricane Katrina.

Democrats immediately moved to press their advantage since they sense Bush is now in a weakened state.

Bush has pledged to appoint jurists such as Clarence Thomas and Antonin Scalia, the two most conservative justices on the high court, to Supreme Court vacancies. He now has two chances to make good on his commitment.

Kennedy signals delay
But only two hours after the announcement of Rehnquist’s death, Sen. Edward Kennedy, D-Mass., issued a statement that suggested that Democrats would try to pressure Bush to nominate to the chief justice opening a non-conservative acceptable to them — not Scalia or Thomas, but someone along the lines of O'Connor or Justice David Souter — a nominee who, they argue, could “unify” the nation.

“In the midst of great loss and great tragedy, it is a time for America to come together,” Kennedy said.

Later Sunday Sen. Charles Schumer, D-N.Y. called for Bush to appoint O'Connor to be chief justice — but just for one year.

He argued that "at a time when our country needs unity and stability, there would be nothing better the president could do than nominate a consensus nominee like Justice Sandra Day O'Connor...."

Schumer's proposal would be historically unprecedented and of doubtful constitutionality.

According to the Constitution, federal judges, including Supreme Court justices, "shall hold their Offices during good behavior" — which means a lifetime appointment, as in Rehnquist's case or until they choose to retire, as O'Connor did in July.

Kennedy also hinted at delaying consideration of any nominee. “Our first priority must be to remain focused on relieving the suffering of the victims of Hurricane Katrina and rebuilding those lives, those cities and those communities,” Kennedy said. “With Justice O’Connor committing to stay until her replacement is named, we can and should remain focused first on protecting our citizens who need help the most….”

Later Sunday both Schumer and Senate Minority Leader Harry Reid, D-Nev. called for Specter to postpone the Roberts confirmation hearings.

It seems likely that the death of Rehnquist will leave the court short-handed as it begins its new term in October.

There have been several periods in the court's history when it has had fewer than its full complement of nine justices; for instance, the interim between Justice Lewis Powell's retirement in 1987 and the swearing-in of Justice Anthony Kennedy was 237 days, or about eight months. That was due partly to the Senate's rejection of Robert Bork, who was President Reagan's first choice to replace Powell.

As of midday Sunday, Senate Judiciary Committee chairman Sen. Arlen Specter, R-Pa., had made no decision on delaying the Roberts hearings.

The president's options
Bush can follow a number of different strategies in finding a replacement for Rehnquist:

  • Appoint Roberts to the chief justice vacancy and find another nominee for the O’Connor vacancy.
  • Stick with Roberts as the nominee to replace O’Connor and elevate Scalia or Thomas to be chief justice, and then appoint another nominee to the empty associate justice chair. This option would necessitate three separate confirmation hearings.
  • Go outside the current Supreme Court to find a new chief justice. Potential nominees include federal appeals court judges J. Michael Luttig and Michael McConnell and Mary Ann Glendon, a Harvard Law School professor

The chief justice’s vacancy matters more than other openings on the court.

A politically-attuned chief can use the court to advance a legal philosophy that he sees as necessary for the times.

Case in point: Earl Warren, the governor of California and former Republican vice presidential candidate appointed to the court by President Eisenhower in 1953, led revolutions in civil rights and criminal defendants’ rights.

Conservatives press the president
Conservative advocates were quick to argue that Bush should stick to his word and appoint another conservative to the bench.

“In two elections, the president made no secret that he intended to nominate constitutionalists, not judicial activists to the bench,” said Kay Daly, president of the Coalition for a Fair Judiciary. “His track record of judicial nominations to the federal bench shows that he is a man of his word.”

She added, “The Left, apparently unaware of the outcome of the last two elections, will continue to attempt to dictate to the President the terms of the nomination and confirmation process…. It is nonsense to believe that Senators Ted Kennedy, Chuck Schumer and Harry Reid, along with their friends at NOW, the ACLU and People for the American Way have the slightest notion what ‘the mainstream’ of America believes.”

One crude mathematical way of expressing the opportunity Bush now has is this: instead of influencing one-ninth of America’s laws and social trends over the next 40 years, Bush now has the opportunity to influence two-ninths of that future on matters ranging from the death penalty to property rights.

Consensus nominee or not?
And presidents who seek to implement the changes that their elections have made possible — Franklin Roosevelt in 1937, for example — do not pick consensus nominees for the Supreme Court, but nominees committed to the victorious president’s jurisprudence.

The nine Roosevelt loyalists whom FDR placed on the high court approved of an activist New Deal government. By 1945, when the president died, they had made it a Roosevelt court.

But Bush’s chances of making today’s Supreme Court a Bush court were much stronger six months ago, in the wake of his re-election, than they are today, when Democrats think they have him at an disadvantage.

In this late summer struggle, Bush could hope for a repeat of the 1986 scenario which showed that two targets are harder to hit than one.

Reagan, working with a Senate under the control of his own party, but under fierce fire from Kennedy and other liberals, managed to get two certifiably conservative justices confirmed: Rehnquist to be chief justice and Scalia to fill Rehnquist’s associate justice vacancy.

Due to being “too extreme” for Kennedy on women’s rights and other issues, Rehnquist served as the lightning rod for Democratic criticism.

Having apparently exhausted themselves on trying to scuttle Rehnquist, Kennedy and the outside opposition groups seemed to lack the vigor to wage an all-out war to defeat Scalia. The Senate confirmed him unanimously.

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