September 3, 2005

Chief Justice Rehnquist dies.


ADDED: I am stunned. I can't believe he's gone. He has been so important for so long. It's hard to believe there's a news story capable of overshadowing Katrina. I wonder what Bush will do. Do you think he might elevate Justice Thomas to Chief Justice? Do you think Judge Roberts will be chosen? A new era is upon us. What an effect this man has had! He was one of the greatest Wisconsin citizens ever, born here in Milwaukee, in 1924.


Menlo Bob said...

Convene the coalition of the embittered. Start with a blanket non-endorsement of everyone and end by inventing new reasons that the electorial minority must prevail. After all, a fetus somewhere is awaiting oblivion and we must not fail 'it'.

Robert said...

Such a shame. Love him or hate him he certainly had an effect on our country's jurisprudence. We will not again see his like.

ploopusgirl said...

Oh, Menlo Bob, good to see you were able to get in your pro-life dig in. I just hope your daughter isn't raped, ends up pregnant, and has no option but to give birth to the child. That'd truly be a shame.

EddieP said...

Menlo Bob
The man isn't in the ground yet. Fer Chrissakes let up on the sniping.

John said...

I'm not quite stunned. He was a pretty old bird. But respect him I do for sticking in there till the end. May he rest in peace.

vbspurs said...

Incredible reaction. I had the same, and though I mentioned in my blogpost of today that everyone expected him to die, it's still a shock.

Not the dying part, but the timing part.

I also once mentioned to the Anchoress that my mother calls Bush the "unlucky-lucky" President, because bad things happen to him...and yet something always intervenes to take the heat away.

Katrina Bush-blame-a-thon was reaching critical mass, in such a cynical politicised way, and yet poor SCOTUS CJ Rehnquist passes away, giving the media a breather from their hysterics.

And on Tuesday the Roberts hearings start!

RIP CJ Rehnquist. You served us all very well.


sunking278 said...

No, this does not overshadow Katrina. An old aristocrat has passed on; he can Rest in Peace, whatever. Potentially thousands of elderly people have died in Louisiana and Mississippi. But nevermind them, right? We can talk about the Supreme Court at some later date. Hannity is live on Fox News right now falling over himself because he finally doesn't have to talk about the poor black folks dying in New Orleans. Disgusting. Rehnquist, Roberts, the Supreme Court, and everything else just doesn't matter when parts of our country are suffering like never before. This doesn't deserve more than thirty seconds of coverage.

ploopusgirl said...

Sunking, I couldn't agree more. I think you're my favorite.

vnjagvet said...

For anyone suffering from insomnia this evening, CSPAN 3 has on the hearings before the Senate Judiciary Committee on the confirmation of Chief Rehnquist.

Senator Paul Simon was just, in his rambling way asking about the extent to which equal protection clause should be applied to overturn state or federal legislation.

Now he is asking about Rehnquist's health issues.

John Althouse Cohen said...

Sunking: Katrina is having the biggest effect on people's lives right now, but the death of the Chief Justice will also have a big effect on a lot of people's lives, though not immediately. It is possible for two very important things to happen simultaneously.

_Jon said...

From his diagnosis to his passing was 9 months or so. As someone who has seen who Cancer behaves, it appears they did not catch it in time. It must have spread before they found it.
He probably didn't have more than a 10% chance back in October.
And he knew it.

Decklin Foster said...

Ann, forgive me for asking what must be a very basic question, but what happens now while we have eight justices? Does Roberts still replace O'Connor?

Jamie said...

Godspped, Mr. Chief Justice.

Roberts is going to suffer for this. Democrats will brutalize him to make Bush wary of nominating another conservative to replace Rehnquist. If he makes it through unscathed, I wouldn't be surprised if he gets elevated to Chief Justice. it would be the third Senate confirmation hearing he's passed in what? Three years?

I'd like to see Thomas as Chief justice, but I think he'll want to avois going through another ordeal like his confirmation hearings. Too bad, really.

Ann Althouse said...

Decklin: Roberts is nominated to take O'Connor's seat, but Bush could change that either before or after the confirmation, presumably before. I would not be surprised if he did.

Jim: CSpan3! I want CSpan3! We only get 1 and 2.

Beldar said...

Decklin asked, "[W]hat happens now while we have eight justices? Does Roberts still replace O'Connor?"

Short answer: Yes, Roberts will still probably replace O'Connor, and business will probably continue as usual; the temporary vacancy in the Chief Justice's spot is unlikely to be outcome-determinative in any particular case.

Long answer:

There is now a vacancy in the office of Chief Justice of the United States, and there are only eight members of the Supreme Court. Until the President nominates and the Senate confirms a new Chief Justice, the Supreme Court (which is currently in recess until the beginning of the October 2004 Term) will continue to operate with only eight (Associate) Justices.

Justice O'Connor is, technically, still one of those eight. Her resignation does not become effective until the Senate confirms her successor. DC Circuit Judge John Roberts is the nominee to be her successor, and unless his nomination is withdrawn by President Bush, it's reasonable to presume that the Senate will continue to deliberate on that nomination and that in due course he will be confirmed, upon which event he'll take Justice O'Connor's place among the eight Associate Justices.

It's possible, but I think fairly unlikely, that President Bush might withdraw Judge Roberts' nomination to be Justice O'Connor's successor and instead nominate him to become the new Chief Justice. Regardless, however, Justice O'Connor will continue to serve until the successor to her seat (whether Judge Roberts or someone else) is confirmed by the Senate.

I expect that President Bush will nominate a proposed new Chief Justice within the next two weeks, but it's highly unlikely that such a nominee would be confirmed by the Senate in time to be sworn in before the beginning of the Supreme Court's new term in October 2005. In all probability, the Supreme Court (with either Justice O'Connor or with new-Justice Roberts as her successor) will begin its proceedings in October with only eight members.

Senior-most Associate Justice Stevens will preside over the Court's activities until a new Chief Justice is nominated and confirmed. That's really not a very big deal; he still gets only one vote, plus the right to assign the initial drafting of proposed majority opinions on those particular cases in which he's voted with the tentative majority, but that very, very rarely affects the actual outcome of individual cases. (Indeed, Justice Stevens has already had that privilege for many years in those cases in which Chief Justice Rehnquist was not among the tentative-majority during the preliminary post-argument vote.) Justice Stevens' temporary presidence will be mostly symbolic and procedural (and I have no doubt that he'll handle those functions superbly and noncontroversially).

If the Senate does not act promptly to confirm whomever President Bush nominates to succeed the late Chief Justice Rehnquist, Pres. Bush might well use his constitutional power to make a "recess appointment" during the next Senate recess (e.g., over the Thanksgiving holiday). The recess appointee would immediately be sworn in and begin acting as Chief Justice, subject to either later confirmation or expiration of his/her recess appointment (at year-end 2006, I think?). My guess is that the Administration will push hard to have a new Chief Justice confirmed before year-end 2005, however, and will only go the "recess appointment" route if there's a filibuster; the possibility of a recess appointment (and Pres. Bush's demonstrated willingness to use his recess appointment power, e.g., with Circuit Judges Pryor and Pickering) may make a filibuster somewhat less likely. That Chief Justice Rehnquist has been so reliably "conservative" perhaps makes a knock-down drag-out full-court filibustering fight over his successor less likely than if, for example, we were looking at replacing Justice Stevens.

When there is a 4-4 voting split on the Court with only 8 Justices participating in the vote on a particular case, the procedural effect of that tie vote is to automatically affirm the decision of the lower court (typically one of the federal [circuit] courts of appeals or a state supreme court). There's considerable informal precedent from past decades, however, for cases that are split 4-4 at the internal conference after oral argument (or, sometimes, other especially important close votes, e.g., tentative 5-3 splits) to instead be re-calendared to be re-argued and finally decided later in the term, or in the following term, when the Court is back to its full complement of nine members. It's therefore fairly unlikely that the vacancy created by Chief Justice Rehnquist's death in office will cause some extraordinary shift in precedent.

Beldar said...

Jamie wrote, "Roberts is going to suffer for this."

Actually, I think not. My (very subjective) perception is that the poitical left is pretty frustrated with their inability to get any traction in opposing Judge Roberts' nomination. Whether Dubya decides to (a) elevate Scalia or Thomas to CJ and nominate a new Associate Justice, or (b) simply to nominate an entirely new face as CJ, or (c) even to transform Roberts' nomination to the CJ spot instead of O'Connors', there will inevitably be a new face for the opposition to shoot at. I don't think any of the other potential nominees (at least those discussed before Roberts' nomination came out) have anywhere close to the amount of Teflon sheathing that Roberts has proven to have. So I suspect that the new face, whoever that turns out to be, is who will "suffer," and that the net result of Chief Justice Rehnquist's death may be that Judge Roberts' nomination indeed turns into a complete cakewalk.

Joan said...

_Jon, those of us in the thyroid cancer community have known ever since Rehnquist's initial announcement that his situation was dire. Upwards of 95% of thyroid cancer patients are able to treat it as a chronic disease after initial treatment is completed, with no change in their life expectancy. But Rehnquist's only treatment was a trach, to ease his breathing. He underwent neither thyroidectomy nor radioactive iodine treatments. Given those facts, it seems most likely that he had one of the more serious variants of the disease.

I was diagnosed with thyroid cancer just a few days before the news of Rehnquist's illness was made public. From where I stand, I understand perfectly his refusal to retire. He knew he didn't have too long to live -- why bother to retire?

Having two openings on the court is sure to cause all sorts of sniping. I'm really not looking forward to it. I suppose it's just naive to hope that Congress will just get on with things and not obstruct.

Charlie (Colorado) said...

Took the DU kids four minutes to come up with a way to see this as a Karl Rove conspiracy.

Makes the whole thing doubly sad.

XWL said...

On FNC just hours after the announcement of his death Alan Dershowitz of Harvard Law called Chief Justice Rehnquist a "Republican Thug" and said that NO law school taught his writings cause he was a poor writer and a judicial activist for the conservative cause who was inconsistent in his application of the constitution.

All I can say is wow, what an amazing lack of grace or comity.

And is that true? Was Rehnquist's writings really ignored by Law schools in general, and if so, is that a product of his writing or is that a sign of the leftward tilt of Law faculty?

Ann Althouse said...

Was Dershowitz talking about his books, perhaps? Obviously, one has to teach the opinions he's written, regardless of how you like them! But it is possible to completely disrespect them. It's possible to read them and say, essentially, well, this is just right-wing ideology.

Carl said...

Ann, I wondered about Roberts for chief as well. Beldar, I'm not sure I understand why you think that unlikely? I rate a recess appointment as nearly unthinkable, in that it pushes the confirmation battle closer to the '06 midterm election.

Anonymous said...
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Ann Althouse said...

Quxxo: Don't reprint the entire text of an article. Here's the link to your article. Feel free to summarize it and make whatever point you have. You may quote a short passage from it, but it's not right to reprint the whole thing.

angryblackconservative said...

What goes around comes around. Karma: the most anti environment judge on the supreme court dies of cancer to the thyroid; the part of the human body that is most sensitive to toxins, pollutants, carcinogens, and other damaging environmental changes.

Joan said...

angryblackconservative, I don't know where you're getting your information about thyroid cancer, but you're assertion that the thyroid is the part of the human body that is most sensitive to toxins, pollutants, carcinogens, and other damaging environmental changes is just bizarre.

Only 1% or less of all cancers diagnosed are thyroid cancers, and only about 3% of those cases are of the type that the Chief Justice succumbed to. If the thyroid were as delicate as you propose, wouldn't thyroid cancer be rampant? It is true that the thyroid is the most vulnerable to damage from radiation, but how many people really have to worry about that?

Trying to connect the death of the Chief Justice to hurricane Katrina as some kind of ironic karmic twist is ridiculous.

Beldar said...

Carl, I'm working on the presumption, justifiable or not, that the Administration was not caught by surprise by the Chief Justice's demise, and that when Dubya nominated Roberts for O'Connor's seat, he was expecting the CJ's death or retirement some time before the end of Dubya's second term. I think they have someone else already in mind for the CJ slot -- quite possibly someone considerably more controversial than Roberts. I believe the WH has accurately assessed Roberts as being relatively/comparatively noncontroversial, and therefore likely to be confirmed even as (what's perceived by the Left to be) the replacement of a "swing vote." Rehnquist was definitely not a swing vote, and I expect the WH to fill the seat opened by his death (whether it's an associate justice slot opened by elevating Scalia or Thomas to CJ, or the CJ slot itself) with someone whom the Left would have fought much harder were he/she nominated to replace O'Connor. But obviously, I'm just guessing here, and I could be completely wrong.

Mark Daniels said...

Were Bush to elevate someone from the Court, I think it would more likely be Scalia than Thomas. Both would be lightning rods in any confirmation process, but Thomas even more than Scalia. Scalia is more highly esteemed for his intellect than is Thomas, even by foes. Scalia is also tighter with Cheney and other members of the Bush Administration, it would seem, than Thomas.

Having said all that, I think there's a less than 50% chance that Bush will nominate either of them for Chief Justice. As a result of Chief Justice Rehnquist's death, the Roberts confirmation hearings are apt to be even more bruising and contentious than they were going to be already. Because Roberts is nominated to replace a justice regarded as a "swing" vote (although on balance, I think, one has to identify O'Connor as a conventional conservative jurist), his nomination was already more important and had larger implications than if he were simply a conservative judge appointed by a conservative President to replace a conservative Justice. Because the President gets to appoint two new members of the court, giving the conservatives an edge, liberals and conservatives will feel greater urgency to either thwart or facilitate Roberts' confirmation by the Senate.

The President already has a list of Chief Justice nominees left over from the days just months ago, when many thought that Renhquist would resign. So, I think that he's likely to nominate someone relatively quickly.

Assuming that the list isn't closed, if I were advising the President, purely from a political standpoint, I would counsel him not to appoint either Scalia or Thomas for the chief justiceship. Their opponents' arguments against them are all well-rehearsed and particularly in the case of Thomas, there is no need to conduct a re-run of his associate justice confirmation hearings. From the President's standpoint, there's no reason to go to the Alamo for Scalia or Thomas when he's already got them and their votes on the Court.

This might in fact be the time for the President to nominate someone like I was suggesting earlier for O'Connor's spot: A conservative pol possessing credibility with Dems and solid judicial credentials, one who can sail through the process and not arouse consternation from the right or vituperation from the left. To me that looks like Orrin Hatch or, for a slightly younger tilt, Mike DeWine.

Menlo Bob said...

Pllopusgirl, I'll take note of the fact that you feel abortion rights is the main problem facing the Surpreme Court and not subverting the constitution to invent new rights.

Eddiep, I appreciate your advice. Please tell me when I'm free to speak.

Carl said...


I'm guessing as well, but we know a few things:

1) the Administration has done it's homework, interviewing several candidates years ago.

2) of all the plausible and/or mentioned candidates, Roberts stands out as having more "Chief-like" talents (friendly, consensus building, willing to compromise). I admit I don't personally know the others, so it's pure hearsay. But, Roberts's Senate confirmation as associate would make confirmation as chief easier a year later. And if we assume appointment # 2 is either more conservative than Roberts or has a more attackable paper trail, better to risk "Borking" with an associate than the chief. And, of course, opponents can be expected to fight harder if the chief seat is at issue.

So, even assuming perfect knowledge of Rehnquist's health, why not get your #1 choice in, and -- no later than a year from nomination -- elevate Roberts?

Joan said...

Believe me, the Administration knew very well that Rehnquist was not going to be around much longer.

This kind of politics is one thing they are usually good at. It's going to be interesting to see this unwind.

Ploopusgirl, you're being unusually short-sighted. Yes, the devastation of Katrina is horrific and will be affecting the lives of Gulf Coast residents for years to come. But Supreme Court appointments and the decisions made by those appointees will/could affect the lives of every U.S. citizen from now until we as a nation cease to exist (nothing like a little hyperbole on a Sunday morning.) I'm surprised how quickly you are dismissing the newsworthiness of Rehnquist's death.

Rossputin said...

The reaction of the left so far has been reprehensible, and I don't expect that to change as we work through the process of filling two Supreme Court vacancies.

If you're interested, you can read my thoughts on this particular issue at

appell8 said...

Beldar, I agree with Carl that John Roberts would be an ideal Chief, for the reasons he mentions. You may be right that the WH has another plan, but I would be delighted to see Roberts shifted to Chief and someone like Mike McConnell or J. Harvie Wilkinson -- or Miguel Estrada -- nominated for associate.

And, it is certainly fitting to pause to appreciate CJ Rehnquist's long and devoted service.

Jim Gust said...

Following up on Rehnquist's reputation at law schools, he was pretty much held in contempt when I took Con Law at Boston University in 1976. His opinion in National League of Cities v. Usery was seen as an attempt to turn the clock back 50 years. This was before he was chief, and the faculty seemed to hope his tenure as an associate justice would be short.

Nevertheless, the next year he was invited to be one of the guest judges at our moot court competition, which surprised me. I guess the administration was more conservative than the professors. He was treated with public courtesy and respect, and he seemed to be a bright and articulate person, and a perceptive judge.

I'm not surprised that the elitest New England law schools never warmed to him. Is that true around the rest of the country?

XWL said...

As far as what Dershowitz meant by not teaching Rehnquist, it was a quick hit and run diatribe so it is hard to know what he meant exactly (probably on purpose).

And as far as possible replacements I think President Bush should fuel partisan conflict rather than try to assuage it (make the Democrats, once again, the party of NO!), therefore may I suggest nominating Justice Janice Rogers Brown as the next Chief Justice of the SCOTUS.

She has the intellect, demeanor and life history to be an excellent and historic Chief Justice (the only proof needed is that she was on the California Supreme Court and garnered the respect of her colleagues across the ideological spectrum), but since large swathes of the Democratic party have portrayed her (unfairly) as an extremist they will be placed in the uncomfortable position of stonewalling the appointment of the first minority and the first female Chief Justice.

If the Democrats do the unexpected and demur to her choice as Chief, then her service will be great for this nation, and if they do the expected and block her, and effectively cripple the Supreme Court through months of partisan bickering then I think they will be held accountable come the next election cycle.

ploopusgirl said...

Excuse me, Menlo, but in the first comment of this thread, you said, "After all, a fetus somewhere is awaiting oblivion and we must not fail 'it'."

My reply was to this sentence of yours, not based on any of my own opinions. If abortion is of prime importance to anyone here, it's you and not me.

Joan: While I'll agree to your basic premise, the coverage we'll be seeing on Rehnquist today and for the next couple of days will be a reminiscing of what a great justice he was/how much he did for the country. It will have little to do with the next elect, and even less to do with our own personal futures. This weekend, the media should be focused on Katrina.

leaddog2 said...

May God rest the soul of Chief Justice Rehnquist!

May he also rest the souls of those who chose to stay in the path of Katrina, or were forced to do so by the total incompetence of the New Orleans emergency management "leaders".

Those disusting so-alled "leaders" have been screaming really loud. They want to divert attention from their own culpable criminal negilgence.

At last count, over 360 city buses were NEVER USED by New Orleans local officials for evacuations. Over 210 school buses parked less that 2 miles from the Superdome were never used and a day later were under water.

That is 570 buses. If you use them once with 50 people each aboard that removes 28,500 people out of harm's way and clears the Superdome on Sunday before the storm. If you use them twice, you move out 57,000 people and clear the New Orleans Convention Center before the levee breaks.

That is part of the public New Orleans plan. They chose not to follow it. I suspect some of the local New Orleans people will eventually do time for gross criminal negligence. They should!

Lyn said...

Here's a thought from Garth at Broken Masterpieces...