Why Chief Justice Rehnquist May Not Be Going Anywhere

When it comes to the exercise of his appointments power, President George W. Bush is all about loyalty. As the President himself recently stated, in defending Attorney General Alberto R. Gonzales against various (mostly conservative) critics, "I don't like it when a friend gets criticized. I'm loyal to my friends." In stocking the corridors of power in his administration, President Bush has lived up to these words. He has surrounded himself with close friends, people who have clearly demonstrated their loyalty to him, time and time again. He does so both to reward them for their allegiance and because he knows they will do good work for him.

For better or worse, President Bush is not an ideologue; he's more focused on people than on principles. This explains President Bush's expressed intention to focus on the "character" and other personal qualities of prospective nominees to the Supreme Court, rather than on their positions on specific issues. In essence, the president is looking for "good folks," not jurisprudential geniuses with elaborate and distinctive theories of constitutional adjudication. (Yes, President Bush has professed admiration for Justice Scalia and Justice Thomas, but this can be explained as simply canny reassurance of his conservative base).

In light of the approach to selecting the next justice that President Bush has described, as well as his recent, pointed defense of Alberto Gonzales, it's looking increasingly likely that President Bush will pick Al Gonzales as his nominee to the Supreme Court. It's true that the President's conservative base would not be thrilled by Judge Gonzales becoming Justice Gonzales; we've all heard the joke that "Gonzales is Spanish for Souter." But because President Bush places his trust in people over principles, his abiding faith in Gonzales as a person will trump any questions critics raise about Gonzales's principles.

Of course, pragmatic considerations also favor Gonzales's candidacy. The political logic supporting a Gonzales nomination is very strong. As Ann Althouse aptly observes: "Appointing Gonzales is so perfect: [President Bush] can pick his dear friend, he can have the distinction and the political advantage of appointing the first Hispanic Justice, [and] he can deflect criticism from Democrats (who have to realize that Gonzales is the most liberal possible choice Bush can make) and from Republicans (who just don't have enough information to pin Gonzales down as pro-abortion)."

The President is now poring over resumes of possible replacements for Justice Sandra Day O'Connor. When he returns from the G-8 summit, he will interview a few top contenders, meaning that announcement of a nominee is probably a few weeks away. (A3G to President Bush: "Hurry up, Mr. President, the suspense is killing her!") But at the end of the day, the other leading candidates -- including controversial conservatives like J. Michael Luttig and Janice Rogers Brown, as well as Emilio Garza (who also has a very good shot at a seat on the Court) -- will probably end up as stalking horses for Gonzales.

Here's additional analysis supporting the likelihood of President Bush appointing Alberto Gonzales to the Supreme Court: the President badly wants to appoint the first Hispanic Supreme Court justice; he badly wants that person to be his good friend Al Gonzales, and so does Laura; and he might not have another chance to put Gonzales on the Court. In other words, with respect to sending Al Gonzales to the U.S. Supreme Court, "it's now or never."*

Many Court watchers, Article III Groupie included, have been working on the assumption that President Bush will get to appoint two Supreme Court justices: a successor to Justice O'Connor, and a successor to Chief Justice William H. Rehnquist. But the more A3G thinks about it, the more she is inclined to think that President Bush might get to send only one person to One First Street. 

Why does A3G think this? In her view, the chances of a Rehnquist retirement during President Bush's term, while certainly not negligible, have been significantly overestimated.** A3G believes it is quite possible that Chief Justice Rehnquist will never retire or resign from the Court; in contrast to Elvis, Rehnquist may never leave the building (except on a stretcher). In other words, it's reasonably likely that he will pass away while holding his judicial office as Chief Justice of the United States. And in light of the Chief's recovery from thyroid cancer -- which appears to be going fairly well, knock on wood -- there's no telling when that time might come. Medical experts are now suggesting that Chief Justice Rehnquist could live for years.***

In no particular order, here are ten reasons -- many based on nothing more than rumor and speculation, and to be taken with more than the proverbial grain of salt -- that Chief Justice Rehnquist will not go gentle into that good night:

1. Some speculation from a UTR reader: "Bill Rehnquist was very upset over what happened to his daughter Janet Rehnquist, who resigned amid much controversy from her post as Inspector General of the U.S. Department of Health and Human Services. In his view, Janet was forced out as Inspector General after she was unfairly turned into the 'fall girl' for the malfeasance of others at the Department."

"The White House's failure to 'have Janet's back,' to support her when she came under fire, was particularly galling in light of the services rendered by Janet to the Administration. Janet helped out the President's brother, Governor Jeb Bush, by delaying an audit of Florida's pension fund at Jeb's request -- so the (damaging) results wouldn't appear until after Jeb's reelection. Bill Rehnquist holds this against the Bush Administration, and he does not want to give President Bush the satisfaction of appointing the next Chief Justice."

2. WHR can't bear to relinquish his très chic black robe with four gold bars. The Chief's custom-designed robe is like a Rei Kawakubo dress. The casual observer might look at it and think, "That thing is pretty damn ugly!" But the wearer has an intense emotional attachment to it -- and having worn it, no other garment feels quite the same...

3. Per Professor Todd Zywicki of the Volokh Conspiracy (quoting an unnamed prognosticator): "[Chief Justice Rehnquist] has been there long enough to know that when you leave the Court you shrivel up and die. He has seen what happened to Blackmun, Marshall, etc. If he leaves, he'll be dead in six months. Without the Court, most Justices have no life."

4. The Chief Justiceship is the only post that gives the occupant the pleasure of bossing around that headstrong know-it-all, Justice Antonin Scalia -- and telling Scalia to "zip it," Dr. Evil-style, when Nino attempts to hijack the Conference and turn brief, concise, highly focused discussion into a rambling, undisciplined, intellectual free-for-all.

5. From Emily Bazelon (yes, related to that Bazelon), of Slate: "As a history buff, [Chief Justice Rehnquist] may have his eye on the record for longest-serving justice held by former Justice William O. Douglas, who went 36 years before retiring, to Rehnquist's current 34."

6. Unlike Justice O'Connor, who cited the need to spend time with her ailing husband, John Jay O'Connor, as a reason for resigning, Chief Justice Rehnquist does not have a spouse who needs her by his side. The Chief's wife, Natalie Rehnquist, passed away in 1991 after battling ovarian cancer. Without a wife to spend his golden years with, and with children James, Janet and Nancy all grown up, WHR might as well pass his remaining time at One First Street.

Some of you might be thinking: What about the Chief's rumored romance (scroll down the page) with "the Rose of Pasadena" -- Judge Cynthia Holcomb Hall, the flower-loving Ninth Circuit jurist and Rehnquist's fellow Stanford Law grad? Alas, it appears to have entered inactive status.

7. Although Chief Justice Rehnquist has published several scholarly books about American law and history, his rumored plan to retire from the Court to become the next John Grisham appears to hit some snags. The problem? The Chief's soporific prose style.

This amusing review of the Chief's book about the Supreme Court, which reviewer Garret Wilson describes as "less than gripping," highlights some of the more deadly passages. Here's an excerpt:

Justice Rehnquist fails miserably in his attempts to inject life into the story by bringing in anecdotes from his own experiences. For instance, Rehnquist tells of boarding with another family during his clerkship for Justice Jackson. "The lady of the house who showed me the apartment was a pleasant, middle-aged woman, and since the apartment met my principal wants I took it." (177).

Yawn! This is as much of a page-turner as The Diary of Samuel Pepys (unabridged version). With books like this out there, who needs Ambien?

8. WHR doesn't want to relinquish the swank digs he occupies as Chief Justice. If you doubt A3G's characterization, check out this photo, or pick up a copy of The Supreme Court of the United States by Fred J. Maroon. This coffee-table book offers mouth-watering, behind-the-scenes photographs of One Frist Street, including lavish pictures of the justices' chambers. It's fabulous -- federal judicial shelter porn!

9. Justice O'Connor's retirement may also reduce the likelihood of a retirement from Chief Justice Rehnquist (at least in the near future). As stated by the brilliant and hilarious Professor John Yoo, a former Thomas clerk, "I would think it [a second retirement] is less likely because the politics would become extremely messy for the president, the Senate, and the Court. The one thing that the Chief Justice cares about is the institution. I don't think he'd want the court to suffer from instability."

10. In terms of personality and temperament, William Rehnquist can be "tenacious and vain," as well as "stubborn." He has a strong contrarian streak; he has no problem with going against the grain and defying expectations. As noted by former Stevens clerk Cliff Sloan in Newsweek, as an associate justice Rehnquist was known for "launching provocative dissents and staking out solitary terrain on the court’s right wing," which led his clerks to dub him "the Lone Ranger."

Even though Rehnquist has mellowed over the years -- or, as Sloan puts it, "[t]he Lone Ranger has become the Invisible Man" -- the Chief remains fiercely independent. He doesn't like being told what to do; after all, he is the Chief Justice of the United States! As a source quoted by Professor Todd Zywicki states, "the only way [Rehnquist] will leave is when it is clear he is doing it on his terms, rather than being pushed."

This leads us to our tenth and final reason for Rehnquist's remaining on the Court, which in the final analysis may be as good as any: "Because he can, baby. Because he can." 

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So there you have them: ten factors suggesting that Chief Justice Rehnquist will never retire from the Supreme Court, but will instead hold on to the bitter end. As a result, it's quite possible that President Bush will not get to pick the successor of Chief Justice Rehnquist (or any justice other than Justice O'Connor). And if President Bush has only one sure shot at a Supreme Court appointment, odds are that it will go to his trusted advisor, good friend, and loyal ally: Alberto R. Gonzales.

A3G to ARG: "Judge Gonzales, if you still have your robes from your time on the Texas Supreme Court, it's time to send them out for dry cleaning!"

* Reports that Alberto Gonzales might be less than enthusiastic about giving up his post as AG and becoming a Supreme Court justice -- what, is he on crack? -- do not change this analysis. Condoleezza Rice was not super-enthusiastic about becoming Secretary of State (because she doesn't enjoy all the hobnobbing and socializing that comes with the post), but when President Bush called upon her, of course she answered. Alberto Gonzales would similarly accept the post of Supreme Court justice if President Bush asked him to serve the nation in that capacity.

** Of course, the possibility of a Rehnquist retirement while Bush is president should not be dismissed completely. Chief Justice Rehnquist continues to have health issues, and even though he has been back at One First Street for months, he hasn't been looking very fabulous lately. Furthermore, as Professor Jim Lindgren notes, it appears that WHR has "not fully followed [his] prior practices in choosing clerks for the distant future." A3G interprets Professor Lindgren to be saying that the Chief did not hire his October Term 2006 clerks in June 2005, according to his standard timetable. This could suggest that the Chief himself hasn't made up his mind over whether to stay beyond OT 2005.

If you have information that the Chief has hired his OT 2006 clerks -- or any information about any Supreme Court justice interviewing and/or hiring law clerks for OT 2006 -- please email A3G.

*** It goes without saying that A3G wishes WHR a full and speedy recovery. Last year she wished him a very happy birthday, and she also wishes him many happy returns.

Comments

[Garf]

What about Rehnquist leaving and then Bush making SDO the Chief Justice. She could do that for a year or two.

[Howard Bashman]

So now the Court is located at One Frist Street. It's an effective way to remind the Court that Article I appears before Article III.