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Extraordinary Circumstances - A Two-Fer?

In his remarks on Justice O'Connor's retirement, President Bush spoke about the upcoming nomination process:

Under the Constitution, I am responsible for nominating a successor to Justice O'Connor. I take this responsibility seriously. I will be deliberate and thorough in this process. I have directed my staff, in cooperation with the Department of Justice, to compile information and recommend for my review potential nominees who meet a high standard of legal ability, judgment and integrity and who will faithfully interpret the Constitution and laws of our country.
As well, I will continue to consult, as will my advisors, with members of the United States Senate. The nation deserves, and I will select, a Supreme Court Justice that Americans can be proud of. The nation also deserves a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing and a fair vote. I will choose a nominee in a timely manner so that the hearing and the vote can be completed before the new Supreme Court term begins.

Which of the potential nominees would present the "extraordinary circumstances" that might give some members of the Senate the air cover they would need to filibuster the nomination? We can only guess.

A colleague of mine, however, raised another hypothetical: What if Chief Justice Rehnquist also announced his retirement in the next few weeks (days, hours)?

My colleague speculated that this would open the door to a "deal" in which conservatives would get one of their favorites on the court and the President could assuage liberals by putting another swing moderate on the court. (I can't help but notice that this idea tracks a storyline from an episode of "The West Wing" in which Glenn Close becomes the first female Chief Justice).

The possibility of a Supreme Court two-fer is relatively unlikely, I think, to give the nation a more "dignified" confirmation process. Interest groups on both sides are already dug in and ready to exchange fire over any potential nominee.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.