Speculation over a High Court in Transition
The death of Chief Justice William H. Rehnquist has increased the pressure on President Bush to nominate a woman or minority to the Supreme Court. Some Democrats have called for retiring Associate Justice Sandra Day O'Connor to stay on through January. But court watchers say such a move is unlikely.
RENEE MONTAGNE, host:
Besides concentrating on the aftermath of Hurricane Katrina, President Bush will have to deal with another vacancy on the Supreme Court. Chief Justice William Rehnquist died of cancer Saturday night. The president can either appoint a new Chief Justice or promote someone already on the bench. And joining me now is NPR legal affairs correspondent Nina Totenberg.
Good morning.
NINA TOTENBERG reporting:
Good morning, Renee.
MONTAGNE: So the funeral for the Chief Justice coming up, plus hearings, how is--all this week, how is this going to work?
TOTENBERG: And not only that, the court is coming back into session in the first Monday in October, which is just a few weeks away. It's not entirely clear to me anyway how all of this is going to work this week. The Chief Justice will lie in state on Tuesday from 10 in the morning until 10 in the evening. There is a funeral--a private funeral, and again, we're not quite sure how private it is, whether there will be press coverage or what of the funeral on Wednesday. And probably the Roberts hearings will begin on Tuesday--that's what they're saying right now, and adjourn for Wednesday and then reconvene on Thursday. That's still, I think, there's still some negotiating going on. The Democrats have asked that the hearings be postponed, both because of Katrina. They had already asked because of Katrina because they thought it was unseemly to have confirmation hearings while you were pulling bodies out of the marshes, but the White House is determined to go ahead.
Chairman Arlen Specter has built in sort of a cushion of about a week, so there is some flexibility here and I suspect we haven't seen the last of the maneuvering over the timing. John Roberts likely will be confirmed by the beginning of the court session in early October, but if he's not, Justice O'Connor still sits on the court. Justice Sandra Day O'Connor announced her resignation in June, but said she would remain on the court until the confirmation of a successor, so she would still be there if something were to come up and he were not confirmed. There will, undoubtedly, not be a new Chief Justice confirmed, that's not likely to happen I would think until late November, early December, something like that. So it's going to be dicey.
MONTAGNE: Well could Justice O'Connor be convinced to stay longer until a Chief Justice is confirmed? Or does it not work like that? If John Roberts is confirmed, that's her job.
TOTENBERG: Well that is her job and it's gone, but I suspect that she could be made the--given a recess appointment, for example, for a brief period of time, but that's not going to happen. It simply isn't going to happen. It would outrage the president's base who--and it's just not going to happen.
MONTAGNE: And what is the challenge then for the administration? What does it face with this vacancy?
TOTENBERG: Well this is a chance for the president to remake the court in the image he has long wanted and the conservatives and the Republican Party have long wanted to be a court that is much more hospitable to a social conservative cause and to state's rights even more so then the Rehnquist court was. Although the Rehnquist court was considered generally a conservative court. Having said that, though, this has been a terrible period of time for the president politically in terms of the response to Katrina. And so this is something of--I hesitate to use the word--a distraction, but it's just one more act to balance in the whole concept of what's going on on the president's plate.
MONTAGNE: And is anything known at this point about how the president--who and how the president may nominate the next Chief Justice?
TOTENBERG: Well he could promote from within the court but that would mean there would be not just two, but three confirmation hearings, and I think most people who know the court well think that's unlikely. They have vetted lots of people for the vacancy--the O'Connor vacancy and I would assume that same list is in play for the job of Chief Justice. And you've heard the names before, Attorney General Alberto Gonzales. It's not clear from the people I've talked to whether he's still in play or whether he really wants to be on the court or has financial reasons not to be. Michael Luttig and J. Harvie Wilkinson, both judges on the 4th Circuit Court of Appeals. But there will, of course, be additional pressure on the president to pick a minority or a woman.
MONTAGNE: Nina, thanks very much. NPR legal affairs correspondent Nina Totenberg.
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