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What happens when Chief Justice Rehnquist decides to hang up his robes?

By Paul M. Weyrich
web posted May 26, 2003

I was in a meeting recently where a well-known journalist insisted that the White House had received what they consider to be a clear signal that Chief Justice William Rehnquist is going to retire. I challenged that assertion, but the journalist insisted that the White House was preparing for a confirmation fight later this year.

Then, earlier this month, I attended a social gathering where a well-known jurist said he had attended a meeting with people who are supposedly in the know about such things. There were those in attendance at that meeting who believed that Sandra Day O'Connor is a shoo-in for chief justice on the grounds she could be confirmed by this otherwise recalcitrant United States Senate.

I often wonder where some people get their information. First, friends of Chief Justice Rehnquist say that if he is planning to retire then he certainly is keeping it a deep, dark secret. Even relatives of his say he has given no indication of retirement. We know he is feeling a lot better now than he had been last November after suffering an injury from a bad fall.

But for the sake of argument, let's suppose my information is wrong, and Rehnquist is indeed going to hang up his robes.

Let's look at what President George W. Bush has said about the Supreme Court. I look to what Bush has said because he is, rather more than is usual for a Washington politician, a man of his word. So over and over again, during the 2000 campaign he said that his two favorite justices were Antonin Scalia and Clarence Thomas. He suggested that if given the opportunity, he would appoint justices such as those to the nation's highest court.

So if the Chief, as he is known by his colleagues, does retire, what will Bush do? While I would love nothing more than to see Justice Thomas promoted as Chief Justice Rehnquist's successor, it is unlikely to happen. Although Thomas is striking in his ability to handle controversial cases, he was only confirmed by a vote of 52 to 48 when George Herbert Walker Bush, the current President's father, still retained much of his post-Gulf War popularity. While the Senate is now in Republican hands and ideologically it must be considered a bit better than the 101st Congress, it is almost certain that the whole Anita Hill business would be fought all over again. President Bush doesn't need that.

Antonin Scalia
Scalia

So what about Justice Scalia? When Chief Justice Warren Burger told the Reagan White House he was going to resign, they were prepared. As soon as the resignation was public, Reagan proposed promoting Associate Justice William Rehnquist (who had been appointed to the Supreme Court by President Richard Nixon in 1971) as Burger's replacement. And to fill the vacancy that nomination created, he proposed Judge Antonin Scalia, who had been on the Court of Appeals for the District of Columbia. Whereas the Rehnquist nomination drew fire and a fair number of opposition votes, Scalia sailed through. The Italian community, which had never had a Supreme Court justice before, put out the word that they didn't want any trouble. Even then-governor Mario Cuomo of New York spoke in Scalia's favor. It was clear from his rulings that Judge Scalia was at least as conservative as Justice Rehnquist, but that didn't seem to bother the Senate at the time.

I suspect that if the President nominated Scalia as chief justice, there would be some fireworks this time and a goodly number of no votes, but I highly doubt he would be filibustered, for the same reason that he was easily confirmed in 1986.

It would be a very prudent appointment for two reasons. First, because Scalia has a stellar intellect and has the ability to influence others. Bush would never have to apologize for a Scalia appointment. Second, because Scalia has told friends that if he is not named chief justice, he will almost certainly resign from the court. He would have served seventeen years on the court, yet he is still young enough to make a good living to support his family. If Scalia is lost, Bush almost certainly could not get someone of his caliber through this Senate. Another high-quality candidate is likely to be filibustered.

Sandra Day O'Connor brings the President problems. She was the swing vote that kept Roe vs. Wade legal. Many of her votes over the years are highly unpopular with President Bush's base. If the President is seen as breaking his word, it would be very hurtful to him in 2004 with the evangelical and conservative Catholic and Eastern Orthodox voters.

If the President nominates someone with rock-solid values and this Senate won't confirm him (or her), whether for chief justice or for associate justice or both, it won't hurt the President and may actually help him in 2004. It almost certainly would defeat some obstructionist senators. On the other hand, if the President makes an appointment such as Justice O'Connor, so he can avoid a confirmation fight and get her through the Senate with ease, he could well suffer at the polls for it. Survey research may currently say that she has a good image and most would approve of the appointment, but that is before the talk radio shows and talk television shows and the webpages of news organizations and concerned groups would discuss her record in detail. He clearly would be seen as breaking an implied promise with that appointment.

My betting is, if the President does get the chance to nominate justices for the Supreme Court, it won't be until his second term, if indeed there is one. In a second term, the President could likely do as he wishes. If I am wrong and those appointments come soon, the President's choices may make or break his presidency.

Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation.

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