Farewell, Chief Justice

Chief Justice William Rehnquist died Saturday night after a long battle with thyroid cancer and missing several weeks of courtroom arguments. He was 80 and had served on the Supreme Court for 33 years, 18 as its chief justice.

His death causes major political upheaval on an already tumultuous court:

President Bush had already nominated John Roberts to replace retiring Justice Sandra Day O'Connor, and Roberts' Senate confirmation hearings are set to begin in a matter of days. He is likely to be confirmed, and some believe he is not as conservative as his record might indicate. I suspect he'll be as unpredictable as the woman he replaces.

Just a few weeks before the new term is set to begin, the Chief Justice position is vacant. The court will operate with just eight justices until a replacement can be selected and confirmed by the Senate. Tie votes return a case to the lower court and can't establish a legal precedent. It is not immediately clear, to me at least, who will fill the role of chief in the interim; John Paul Stevens is the court's most senior associate justice.

President Bush will likely feel there is some political cover -- replacing Rehnquist with a conservative would not change the court's makeup as Rehnquist had been solidly and reliably in the conservative column. Yet Bush has an opportunity not seen since 1986, namely to appoint the person to guide the court for what could turn out to be decades.

The horserace: There has already been some talk -- and surely there will be more -- about elevating Associate Justice Antonin Scalia to the chief justice position. Scalia is one of Bush's favorite jurists along wi th Justice Clarence Thomas. Elevating Scalia would also allow Bush to appoint another associate justice, perhaps Anthony Luttig or Edith Clement, or even Alberto Gonzales, all people who were apparently very much in the running this summer to replace O'Connor. However, historically, such elevations are not particularly common. In fact, Chief Justice Earl Warren had served as California governor and never had been on a court.

So, if Bush wants a safe assurance that the court will remain in conservative leadership, he should appoint Scalia. It would be a fight in the Senate, especially along the lines of conflict of interest with previous cases, but he would likely be confirmed. If Bush wants to leave a mark for history, he will probably go with Clement or Gonzales. On of the talking heads pointed out that Clement is on the 5th Circuit Court of Appeals, from New Orleans, and that could gain Bush some politics points. But I doubt that.

Watching the Supreme Court just got a whole lot more interesting. The White House staff surely must be asking "What next?" Between managing the catastrophe along the Gulf Coast and a major nomination (Roberts'), they already had enough on their plate. But this will really spread the staff thin.

Meanwhile, look to Sen. Arlen Specter of Pennsylvania to be the man challenged with guiding all these nominations through the Senate. He could very well be the one who comes out of all this with a feather in his cap for brokering a deal among senators and the administration.

-- Seattle