Chief Justice William Rehnquist died last night.
William Hubbs Rehnquist, the 16th chief justice of the United States, died last night at his home in Arlington. He was 80.
Rehnquist, who had been suffering from thyroid cancer since last October, had managed to lead the court through its last term, which ended in June. But he went through “a precipitous decline in his health in the last couple of days,” Supreme Court spokeswoman Kathy Arberg said.
Rehnquist’s death comes as the Senate is preparing for hearings on President Bush’s nomination of John G. Roberts Jr. to replace Sandra Day O’Connor as an associate justice. Those hearings are set to begin on Tuesday. O’Connor, 75, announced her retirement on July 1, effective upon the confirmation of a successor.
There are, of course, political implications to consider. Loyola Law School’s Richard Hasen had a provocative piece a few months ago in The New Republic about how a double vacancy (O’Connor and Rehnquist) could affect the process through a “West Wing” scenario.
In an episode of the television series last year, the fictitious President Bartlett had two Supreme Court seats to fill. Despite his own liberal leanings, he filled one seat with a more conservative candidate and one with a more liberal candidate. The ability to negotiate with two seats allowed both candidates to get through the Republican Senate.
The same logic would hold in the real world. If Bush had two seats to work with, he would likely nominate a conservative to one seat and a more moderate nominee to the other. Democrats probably would not block a deal that preserves the Court’s current balance of power. Indeed, preserving the status quo is about the best deal they can realistically hope for. For their part, conservatives would probably be happy with another Scalia or Thomas on the Court, even if that came at the price of a more moderate justice in the other seat.
If Bush instead picked two hardline conservatives to fill those seats, Democrats would have a stronger argument to make to the Republicans in the Gang of 14 that these would be “extraordinary circumstances” justifying a filibuster. Meanwhile, the public would probably favor maintaining the status quo on the Court, would view the Democrats’ filibuster as reasonable, and would therefore be unlikely to countenance the nuclear option. In short, a Rehnquist retirement opens up greater space for political compromise in a Senate that is currently short on trust.
Maybe. Part of the problem, however, is that the right is already arguing that John Roberts, despite his very conservative record, is a moderate nominee, which means Bush can and should tap an even more conservative nominee to replace Rehnquist.
What happens next is anyone’s guess.