It Still Could Be Worse

So, Rehnquist will be replaced by his old clerk, John Roberts. My commentary remains the same as it was when he was nominated for associate justice, aside from some oddities regarding O'Connor's departure, it still "Could Be Worse."

So basically, I have nothing more to add to the Roberts nomination. I was kind of rooting for McConnell still--but water under the bridge. Indeed, if anything Roberts is more acceptable as Chief, both because I think everyone agrees he has the right temperament for the position, and also because he is much more ideologically aligned with Rehnquist than with O'Connor.

However, that makes Bush's second bite at the "replace-O'Connor" apple quite a bit more tricky. Most everyone thought that Rehnquist would resign before O'Connor, and planned their nomination scenarios accordingly. Bush could nominate a Rehnquist-esque conservative to appease his right flank, and Democrats couldn't complain too much since it was a right winger for a right winger. Then he could do a moderate later, when O'Connor left. When O'Connor resigned first, it threw everyone for a loop, but now we're roughly where we started--Roberts the conservative sop replacing a fellow conservative. So, who will be nominee #2?

O'Connor noted that she would have liked to have been replaced by a woman. Like Jack Balkin, I agree that the calls for Bush to appoint a minority or women will be renewed, and will be harder to ignore this time around. Could Edith Clement (remember her?) be resurrected? Or perhaps it will be Janice Brown Rogers--Orin Kerr argues that she is actually significantly more liberal than she is made out to be (she's quite libertarian--giving us a brutally conservative economic regime and a brutally liberal social one)--but an unlikely Bush pick. I thought that Bush would nominate a minority last time and was wrong--could this be the time? After giving the right Roberts, the door for Gonzalez may be open. Or perhaps Larry Thompson--he's kept a low profile from liberal attacks (I'm still rooting for boring white male Michael W. McConnell though). In any event, Professor Bainbridge has posted the odds.

Obviously, the Chief Justice is an important position--especially, as Bainbridge notes, his authority to assign opinions. But when of Rehnquist's greatest legacies was that he depoliticized that power. Unlike Burger, who would assign unpopular opinions to judges he disliked and was a masterful manipulator of his fellow justices to secure an opinion of the Court closest to his views, Rehnquist, by all accounts, was asstudiously fair in his assignment process. I see nothing in Roberts' record that would suggest he'd be any different.

But even if I thought that Roberts would be worth opposing (and I don't), I wouldn't recommend it--and it's Rehnquist himself who set the precedent. Democrats went full throat against him when he was to be elevated to Chief, a move which ultimately had no impact. Meanwhile, uber-conservative Antonin Scalia slipped through with nary a peep. Restless Mania sees that scenario happening again. But with Roberts looking like a shoo-in, I'd just as soon have Democrats meet with Bush and trade a Roberts confirmation for a moderate nominee. No sense getting distracted by the same fake twice.