SCOTUS Speculations

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The wheels go round and round...

By now it’s common knowledge that Justice Sandra Day O’Connor is retiring from the Supreme Court, and Chief Justice William Rehnquist is not. Naturally, the rumor mills have hit overdrive, on all sites interested in the High Court, which is to say pretty much everyone.

It occurs to me that a good sense of what to expect, would come from a consideration of what we already know about the Justices. Some of it is bound to be wrong, but in the main we should still get the gist of it.

First, why did O’Connor resign? Her health is certainly not a factor, nor was there any obvious dissatisfaction with her colleagues or the Court’s direction. For all appearances, she seems to be retiring solely because she feels she has done what she wanted, which is fine, except that I don’t buy it.

I am a big fan of the late Roger Zelazny, especially his Chronicles of Amber series. I remember one scene where the family on which the story focuses, and a key dispute where each side has a leader, and the family separates both figuratively and literally according to where they stand. The Court is the same way, led on the Left and Right by Ginsburg and Scalia respectively. Rehnquist is the Chief Justice, but that doesn’t give him the most influence. With all the 5-4 decisions in the past few years, the divide has been fluid and real.

Next up on each team would be Breyer and Souter for the Left, and Thomas and Rehnquist on the Right. That left the final three to swing the calls, Kennedy, Stevens, and of course O’Connor. Those final three most likely think of themselves as Independents in the power balance of the Court, but that doesn’t change their personal tilts. O’Connor, it may be remembered, was a strong Bush supporter in 2000, while Ginsburg was a vocal advocate of Gore, and likely also for Kerry. This suggests to me that O’Connor wanted to give Bush a clear nominee all his own, while Ginsburg will try to hold out to 2009 and 2010 on the hope that a Democrat President will choose her replacement.

This brings us to Rehnquist. If Rehnquist steps down at the same time as O’Connor, expect the RINOs to demand a “balance”, matching a conservative Justice with a “moderate”, meaning weak enough to satisfy the Democrats, as in Souter II. But since Rehnquist says he is not stepping down, then Bush is free to nominate whomever he likes, which hopefully means a Garza or a Brown. Since Bush has not had a nominee before, his nominee will probably pass far more easily than the press realizes, especially with the focus on just one nominee, and since Bush is not going to announce the nominee with any more time than he needs; this is exactly why we have not heard the nominee’s name before - it’s good tactics.

If I had to guess, I have a feeling that Rehnquist will try to tough out the coming session, and will step down next summer. Yes, it will make the Court an issue in the 2006 Elections, but Ginsburg is weaker than she lets on (I suspect), and it is entirely possible that Rehnquist will try to talk her into stepping out with him, which makes it likely that Bush will wait until then to submit Gonzalez, possibly for Chief Justice. The real question is the nominee for the third slot (Ginsberg); will Bush push for a Conservative to replace Ginsberg (who replaced a fairly Conservative Justice in 1993) , or appeal to “moderates” with someone more to their liking (though still likely to be labeled “Hard Right” for political attack value). I’m hoping Bush will play it straight and move the Court to the Originalist lane as much as he can.

Scalia, Breyer, Thomas, Souter, and Kennedy are all in pretty good health and have no plans to go. As for Stevens, I’d expect he’ll do his best to hang on to 2009, in hopes for a Democrat President to follow Bush. If his health allows it, that is.