September 04, 2005
By Richard Epstein
The death of William H. Rehnquist creates a second vacancy on the Supreme Court, which now threatens to throw the entire nomination process into big-league confusion. As of this writing, no official notice has been given that the hearings on John Roberts will be delayed, and none should be forthcoming. Many of us have long claimed that the tortuous nature of the nomination process will in the end demean the institutional standing of the Court. That prospect will be much closer to the short run if it turns out that the October Court will be begin without any Chief Justice, and only eight members, assuming that Justice O’Connor is prepared to stay until the ever-more Byzantine politics work their way through to some conclusion.
There is in my view only one sensible course of action in the present. The Roberts nomination should go forward with an eye to quick confirmation. He should remain a nominee for the seat that he was originally proposed. The next nomination should be for the Chief Justice, and not a word should be said about that appointment until this one is completed. It is evident that the Senate has trouble juggling one ball at a time. We cannot afford to guess what strange alliances will emerge if two names are put forward simultaneously. One only hopes that the Democrats will not engage in delay tactics, which can only throw the fall term into turmoil.
On all of this I am in agreement with Steve, and I share his amused sense that the only distinguished conservative jurists are those who have left the bench. I also share with him his deep sense of amazement and distress that the implicit program of the anti-Roberts Democrats is to treat Sandra Day O’Connor as setting the outer limits of the acceptable right flank in Supreme Court jurisprudence. The Court should be open to people of ability with all sorts of views. As a small-state libertarian, I disagree with many of the decisions that the so-called conservative right would support. I am happy to argue with the justices whose positions differ from my own. I do not think it appropriate to use any set of substantive views, even my own, to keep people off the bench. No one has a monopoly of sound thinking on these issues.
I do, however, take issue, cautiously, with Steve on one question of policy. I am not so sure that it is a foolish suggestion to ask Justice O’Connor to assume the role of an Acting Chief Justice until a permanent replacement can be found, hopefully sooner rather than later.
The argument against that proposal is that it reduces the pressure to fill the position quickly. The Democrats (or at least that fraction of them that are opposed to Roberts) can then use the O’Connor Chief Justiceship as a reason to delay the hearings on any Chief Justice nominee, and thus drag days into weeks, months, or even an entire year. But the alternative is to travel light to require some adjustment in the rules on certiorari (four out of nine are currently required), and to produce a set of annoying four-to-four ties. On balance, I think that public pressure to restore the Court to its normal nine-member contingency will force the Chief Justice question forward. There will be no two-month period of reflection before the job is done.
In the short term, however, the first move is to hold the Roberts hearings as scheduled. Nothing about this nomination has changed. The object of delay is to sow further confusion for which we have no need. The Supreme Court took two hundred years to build up its current institutional capital. We do not need it to be dissipated in a couple of weeks.
Posted at 05:52 PM
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