04 September 2005

Chief Justice Rehnquist Dies.

Chief Justice Rehqnuist has died, leaving two vacancies on the U.S. Supreme Court (actually Justice O'Connor's resignation is only effective upon the appointment of her successor, but she has tendered her resignation).

My second post on this blog remains on target. The swing vote in the Court will still become Justice Kennedy. This does add one twist, however. Until successors to O'Connor and Rehnquist are appointed, there will be four "liberal" justices (Stevens, Ginsberg, Souter and Beyer), two "moderate" justices (O'Connor and Kennedy) and just two conservative justices (Scalia and Thomas) on the Court. This would result in a number of 4-4 votes on close issues in the term that begins in three weeks. The Court could easily have six months to a year with only eight members. Also, it isn't clear if nominee John Roberts would feel compelled to recuse himself from a critical appeal unfavorable to Guantanamo Bay detainee which he ruled upon in a Circuit Judge. If he took office and did recuse himself in that case, and that case was heard prior to the appointment of Rehnquist's successor, that case could be heard by a 4 liberal, 1 moderate, 2 conservative member court (the quorum for the U.S. Supreme Court is six Justices).

John G. Roberts, Jr., an extremely conservative man, most of whose career has been deeply meshed with conservative politics, has been nominated to replace moderate Justice O'Connor, and while some Democrats will object, the likelihood of his nomination being approved is significant. There is little likelihood that the individual appointed to replace Justice Rehnquist will be more moderate as a result.

Elections matter. The election of 2004 determined who would appoint the next two Supreme Court Justices. The nominees would have been very different had Senator Kerry been elected. But, he wasn't, and so our nation's jurisprudence will take a turn to the right for the next few decades. Justice Rehnquist served 33 years on the U.S. Supreme Court. John Roberts, Jr. is a comparatively young man, and I expect that the individual nominated to replace Justice Rehnquist will likewise be relatively young.

Effectively, no matter who wins the next Presidential election, the U.S. Supreme Court has ceased to be a meaningful venue for vindicating constitutional rights.


Anonymous said...

It looks like Bush has side stepped the scenario you describe by renominating Roberts for chief justice. Bush just lives and breathes the Peter principle, doesn't he?

Andrew Oh-Willeke said...

Thanks for pointing that out. Sometimes events can even overtake the blogosphere.

Andrew Oh-Willeke said...

Absolutely. Nominee #2 will be more conservative unless the Roberts nomination is either not approved or is just narrowly approved.