After 33 years on the Supreme Court, Chief Justice William H. Rehnquist may retire soon. In choosing his replacement, President Bush has two options: He could elevate a sitting justice to the position of Chief Justice, and then appoint a new associate justice; or he could appoint someone from outside the court to succeed Rehnquist.
Washington’s red and blue teams are gearing up for battle. On the right, Progress for America is promising a $20 million advertising campaign to support Bush’s nominee, while the left-wing People for the American Way has 40 workstations and 75 telemarketers standing by to oppose whomever Bush nominates.
Bush’s decision will involve both principle and politics. What kind of judge does he want making decisions for the next 20 years? And what nominee would have the most political appeal, or be the easiest to confirm? Every president balances such questions in making high-level appointments.
Some observers think Bush would like to elevate either Antonin Scalia or Clarence Thomas to chief, but most speculation has centered on a variety of new appointees. Often mentioned are Judges Michael W. McConnell of the U.S. Court of Appeals for the 10th Circuit; J. Harvie Wilkinson III and J. Michael Luttig of the 4th Circuit; John Roberts of the D.C. Circuit; Emilio M. Garza of the 5th Circuit; and former solicitor general Theodore B. Olson.
In all the speculation in the media about what the president may do an obvious possibility is being overlooked: promoting Justice Sandra Day O’Connor to chief justice. Politically, she’d be an inspired choice.
Here’s the case her backers in the White House are surely making:
Women are a majority of the voters, and they lean Democratic, but Bush did better among women in 2004 than in 2000. Appointing the first woman chief justice could only help pull women voters, especially professional women, toward the Republican Party.
O’Connor, a moderate conservative who often casts the deciding vote in 5-4 decisions, would be a slam-dunk confirmation. Despite a few grumbles on left and right, she’d likely be confirmed unanimously, as she was in 1981.
O’Connor is 75, she recently wrote a book about growing up in Arizona, and she is spending more time back home. Chances are, she’d like to retire, but she’s interested in becoming chief justice if there’s a vacancy. Given her age and her interest in going home, she’d likely serve only a year or two. Bush could then appoint another chief justice, one for the long term, in 2006 or 2007.
Along with elevating O’Connor, Bush would have to nominate another justice to the court. The positive response to O’Connor’s nomination would ease the way for a younger conservative to replace Rehnquist’s conservative vote on the court.
So a logical consensus in the White House would be this: the best combination of principle and politics would be O’Connor for chief justice and the brilliant academic-turned-judge Michael McConnell for associate justice. Then in a year or two McConnell could be elevated to chief justice.
O’Connor wouldn’t be my choice — although I’ve been impressed by her stirring dissents from the court’s misguided decisions in the recent federalism and property rights cases. But I’m not the president, and I think this strategy makes sense for the man who is.