I was listening to a blowout college football game on the radio with two former NFL coaches or assistant coaches on the sidelines for the perspective teams and one of the announcers muttered something about the Chief Justice dying. Sort of like it was not meant for the air ... and that is how I found out that Chief Justice Rehnquist has died. I think dying in office is a fine way to go, and hope his passing was not a cruel one.
His resignation (if not his death) was not shocking given his health, so I am sure that a replacement is in the works, if not already selected. So, though it would have been better if he resigned at the end of term, it is not as bad as it could be. Nonetheless, it does causes problems. At the moment, the Supreme Court is in some extent evenly split, pending Justice O'Connor's retirement. [A footnote: No law clerk/justice on the court together.] We have four "liberals" and four "conservatives," though only around 1/3 of the cases split 5-4 and not always the usual way.
Also, there are two justices (and a Chief Justice unless one vacancy would be a 2 for 1 job -- though many think Scalia would be made CJ) to fill now. Roberts probably would have been confirmed by the First Monday in October. Since it takes time, surely at least a month before the hearings, surely both vacancies will not be filled. Thus, Justice Stevens would be the Acting Chief Justice until the vacancy is filled, causing many to smile. And, things will be a bit messy for a few months, even when the two newbies (or three, whatever) are on the bench.
The overall sentiment over at Daily Kos is that there is basically nothing much to say good about the guy, surely in regard to his judicial policy. This is wrong. First, though cutting back the docket (which Justice Stevens supported) is felt by some to have been a bad policy, he was a good Chief Justice -- in the sense of presiding and so forth. Both liberals and conservatives on the Court thought so.
Second, though a conservative,* he was not quite of the Scalia/Thomas sort. He wrote opinions in support of off color political cartoons, family leave requirements on states, allowing a state not to fund training courses for ministers, and upholding the principles of Miranda -- and except for the first (Thomas not on the court, Scalia joining), the two all dissented. He also joined the Hamdi concurrence (over Thomas' dissent) in the Hamdi enemy detainee case. We could do a lot worse ... and that is not sarcasm.
Anyway, now we have el presidente having the chance to select another justice, the chief justice as well. Thanks America for re-electing him! You know, to protect us from terror and because he was such a forthright guy and all. But, he also selects justices, you morons. I don't know if he will slide Scalia over to CJ -- it would satisfy his base and apparently Scalia is his judicial idol. Still, unlike the U.N., I reckon conservatives do not want to wreck the Supreme Court. And, Scalia will not wreck it, but I do not see him as good CJ material. This seems almost self-evident, given his divisive personality and independent mind. So, it's not really his ideal role, even if I agreed with his ideology. But, it is not just a token one either -- control of the majority effects the end result.
As to the slot itself? I reckon some conservative ideologue, Roberts filling the respectable (if still truly conservative) O'Connor vacancy. It might be messy and probably will give Roberts a better shot at a 80-15 type confirmation, even though it's perfectly possible to oppose his nomination and allow a vote in which the majority party (a few usual suspects) confirms him. I also think a woman (one of the Ediths?) would be a logical choice or a minority -- yeah, I know, they do not believe in affirmative action. Ha ha.
We expected this [Linda Greenhouse already has a long obit available] ... just not this soon.
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* Principled ... though I surely disagree with him, his stance that local majorities should control (over individual litigants and federal officials) is reasonable, if too singleminded as applied. This (to quote LG) makes some sense, even if Bush v. Gore violates the general principle:
One of the most notable aspects of Chief Justice Rehnquist's career was his consistency. Five years into his tenure on the Court, the Harvard Law Review published a "preliminary" appraisal by Professor David L. Shapiro. Professor Shapiro identified three basic elements of the Rehnquist judicial philosophy: conflicts between the individual and the government should be resolved against the individual; conflicts between state and Federal authority should be resolved in favor of the states; and questions of the exercise of Federal jurisdiction should be resolved against such exercise.
OTOH, if he was inspired as much by The Road to Serfdom as he said, one would think he would be a tad more libertarian minded in his decisions ... state serfdom still bad, right?