Because she was out of town over this (rather momentous) holiday weekend -- heck, most of her toiletries are still in her overnight bag! -- Article III Groupie is playing catch-up right now. She hasn't had enough time to digest all of the latest news concerning the passing of Chief Justice William H. Rehnquist, the nomination of Judge John G. Roberts as Chief Justice, the postponement of the Roberts confirmation hearings, and the current state of Hurricane Katrina rescue and relief efforts. A3G has read only a handful of newspaper articles about recent events, and she has not yet seen what most of her favorite blogs are saying.
But being ill-informed has never stopped her before from shooting off her big mouth. So here are ten random thoughts from A3G concerning the current state of affairs (some of which she'll surely have to modify or retract after she acquires a clue):
1. Obviously the remaining Supreme Court justices share an overwhelming sense of grief at the loss of their deeply admired, longtime colleague. Some of them -- including Justice Sandra Day O'Connor, who briefly dated Chief Justice Rehnquist at Stanford Law School, and who appeared quite stricken this morning when his casket was carried into the Court's Great Hall -- were friends of his well before they shared the bench with him. The reactions of several justices to the Chief's passing are collected in this fascinating NYT piece by Linda Greenhouse, the Femme Fatale of One First Street.
2. But beyond their shared mourning, the associate justices also must have somewhat divergent reactions to the death of Chief Justice Rehnquist and President Bush's decision to switch over Judge Roberts to the Chief Justice spot.
Justice Antonin Scalia, for instance, may be disappointed that he was passed over for the Chief Justiceship -- Nino was known to be angling for that plum post. But Justice Scalia may also be hopeful of getting better writing assignments under a new Chief (Chief Justice Roberts or otherwise). For the past few terms, Justice Scalia has been somewhat dissatisfied with the opinions that Chief Justice Rehnquist assigned to him, which has caused him to become somewhat less engaged with his work at the Court and more interested in outside pursuits (e.g., the lecture circuit, duck hunting with Vice-President Cheney, etc.).
3. Even if Judge Roberts can be confirmed as Chief Justice before the start of October Term 2005, it is highly unlikely that a replacement for Justice O'Connor will be seated by October 3, the start of the new Term. As a result, Justice O'Connor -- who agreed to remain on the Court until the confirmation of her successor -- may have to spend more time this fall at One First Street, instead of with her ailing husband, John Jay O'Connor. This may be a source of some disappointment or even distress for her.
4. Will Justice O'Connor participate in any of the cases for this Term? Perhaps not -- it wouldn't make much sense, since she will probably have left the Court by the time even the first cases of OT 2005 are decided. But if SOC does participate, Justice O'Connor's clerks will probably be more than happy to work on some merits cases, as opposed to the cert petition work that they've been stuck doing over the summer.
(Of course, as noted here by Marty Lederman and here by Tom Goldstein of SCOTUSblog, Justice O'Connor might follow the example of Justice Marshall and replace her "conditional" resignation with an unconditional and immediate one, even before the start of the Term on October 3rd. This would render moot the issue of her possible participation in any of the OT 2005 cases.)
5. President Bush's decision to switch John Roberts over to the Chief Justice spot was brilliant from a political perspective and wise from a leadership standpoint. (In fact, as soon as A3G heard the news of Chief Justice Rehnquist's passing, she guessed that the President might take such a step.) The magnificent symbolism and sentimental value of having the late Chief Justice Rehnquist replaced by his former clerk -- and one of his pallbearers, as his casket was carried into the Great Hall of the Court -- makes the Roberts nomination even more unstoppable. The American people love a good personal story, and this is as good as it gets.
6. Now, what about replacements for Justice O'Connor? A3G is thinking that SOC's spot will go to a woman or a minority (with a Latino candidate especially likely). If Attorney General Alberto Gonzales is too moderate for the conservative wing of the Republican Party, Judge Emilio M. Garza might not be a bad substitute (provided that the White House can figure out a good way to spin Garza's anti-Roe reflections). Also, let's not forget certain promising candidates beyond the federal appellate bench, such as Larry D. Thompson, "The Pepsi Challenger," and Carolyn B. Kuhl, "The California Dreamin' Diva". (If John Roberts and Carolyn Kuhl both end up on the high court, it would be a reunion of sorts: both judges were members of the legal conservative "Brat Pack" during the heady Reagan years.)
7. Here's a possibility worth considering: Would Judge Edith Brown Clement, as a Fifth Circuit judge from the hurricane-ravaged city of New Orleans, have sentimental appeal as a SCOTUS nominee? (A3G doubts that Joy Clement will get the nod, but it is something to think about.)
8. A3G opined in a recent interview (see question #7) that Judge Janice Rogers Brown -- UTR's #1 Judicial Diva, recently confirmed to the D.C. Circuit -- would be a logical choice for the Supreme Court. Nominating Judge Brown would certainly make conservatives like A3G very, very happy. But things aren't going that well politically for President Bush these days. Some pundits have wondered: Does the president have the political "juice" right now to win Senate confirmation for Judge Brown or someone similarly conservative, such as Judge J. Michael Luttig or Judge Edith H. Jones, "The Horsewoman of the Right-Wing Apocalypse"?
A3G's own view: President Bush, just go for broke on this one, and nominate the strongest conservative that you can find! After all, you're not up for reelection (and a SCOTUS nomination isn't the kind of issue that would hurt the Republicans in midterm elections next year). So go ahead and spend your remaining political capital freely, to establish a lasting legacy at the Supreme Court!
9. Regardless of whom he picks to replace Justice O'Connor, President Bush should hold off on announcing his selection until after Judge Roberts is confirmed. He should not take the bait of Senators Kennedy and Schumer, who have been calling on him to state his nominee for Justice O'Connor's seat before the Roberts confirmation hearings next week.
If John Roberts were a problematic nominee, then nominating someone even more objectionable could be politically beneficial to Bush: it would strengthen Roberts's candidacy by forcing the Democrats to admit that Roberts isn't as "bad" (i.e., as staunchly conservative) as Janice Brown, Mike Luttig, or Edith Jones. But since the Roberts nomination doesn't need any help -- with the well-qualified Judge Roberts cruising towards confirmation, knock on wood -- President Bush might as well conserve his political resources for the (much uglier) fight over Justice O'Connor's successor.
10. Finally, can someone please put a muzzle on the super-annoying Senator Chuck Schumer? Nobody cares what that irritating loudmouth has to say. It's not like Schumer is the ranking Democrat on the Senate Judiciary Committee (that would be Senator Patrick Leahy) or an otherwise influential member of the Senate, such as Senator Ted Kennedy (a force to be reckoned with in the chamber, despite his rather unsavory past). Schumer's endless yapping about judicial nominations is a pathetically transparent attempt for a C-list senator to build a national profile. But let's face facts: you can't make a superstar out of a mediocrity.
And speaking of superstars: What does Senator Hillary Clinton think of all this? The conservative Article 3 Groupie does not share Hillary's liberal political views. But A3G can't help but admire Hillary for her fantastic celebrity and unbeatable diva power. So please, Chuck, shove a sock in it -- and yield your time to That Magnificent Senatrix, who despite being your junior shines a thousand times brighter!