O'Connor, Not Rehnquist?

Warning: THIS IS SPECULATION. Obviously, I think it's somewhat well-informed speculation, or else I wouldn't be writing this. But it is speculation.

(1) There will be a Supreme Court resignation within the next week. But it will be Justice O'Connor, not Chief Justice Rehnquist. There are several tea-leaf-like suggestions that O'Connor may be stepping down, including the fact that she has apparently arranged to spend much more time in Arizona beginning this fall. There are also recent intimations that Chief Justice Rehnquist may not resign. This would be consistent with Justice O'Connor having confided her plan to step down to the chief a while ago. Rehnquist probably believes that it wouldn't be good for the Court to have two resignations at once, so he would presumably stay on for as long as his health permits, and/or until after Justice O'Connor's replacement is confirmed.

(2) President Bush will appoint Attorney General Alberto Gonzales to replace O'Connor. Bush certainly wants to put Gonzales on the Supreme Court. Presidents usually find a way to do what they want to do.

And his aides will have an argument to make to conservatives (like me) who would be unhappy with a Gonzales pick: Bush would not, after all, be replacing a conservative stalwart like Rehnquist with Gonzales. Gonzales would be taking O'Connor's seat, and Gonzales is likely to be as conservative as, or even more conservative than, O'Connor. Indeed, Karl Rove will continue, Gonzales is as conservative a nominee to replace O'Connor as one could find who could overcome

a threatened Democratic filibuster. Bush aides will also assure us privately that when Rehnquist does step down, Bush will nominate a strong conservative as his replacement. They might not tell us that nominee would be as an associate justice, for Bush would plan to then promote Gonzales to chief justice--thus creating a "Gonzales Court," a truly distinctive Bush legacy.

A Gonzales nomination would, in my view, virtually forfeit any chance in the near term for a fundamental reversal in the downward drift of American constitutional jurisprudence. But I now think it is more likely than not to happen.

From National Review Online's Bench Memos

Gonzales and Recusal
[Edward Whelan 06/22 12:08 PM]
The Chicago Tribune article that Jonathan cites reports the “fierce opposition” that the nomination of Alberto Gonzales would encounter from conservatives. But let’s assume that conservatives were convinced that Gonzales would make an outstanding justice. I would like to explain more fully my previous suggestion that Gonzales’s recusal obligations under federal law would make it folly for President Bush to appoint him to any imminent vacancy.

Section 455 of Title 28 of the United States Code provides that a Supreme Court justice (or other federal judge) shall disqualify himself from a particular case “[w]here he has served in governmental employment and in such capacity participated as counsel [or] adviser . . . concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” It further provides that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

These requirements were toughened up in 1974. Under the looser standards in effect before then, Justice Rehnquist was plagued by recurring problems stemming from his service as head of DOJ’s Office of Legal Counsel. Among other things, he did not participate in the landmark case of United States v. Nixon. Although the Court’s practice of not stating the reason for a justice’s non-participation in a case makes it difficult to determine with certainty in how many other cases Rehnquist was obligated to recuse himself, circumstantial evidence indicates that the number of cases was in the double figures. In addition, there was considerable (and lasting) controversy over at least one case, Laird v. Tatum, where he declined to disqualify himself.

With the tougher standards now in place, and with the far more extensive role (compared to Rehnquist) that Gonzales has played as White House Counsel in President Bush’s first term and as Attorney General now, it would seem likely that Gonzales would have to recuse himself from virtually every case of importance to the administration. With all the other outstanding alternatives available, what sense would it make to nominate someone with all this recusal baggage?

Very depressing, if Bill Kristol is right.

It is NOT ACCEPTABLE to replace O'Connor with another squish. Gonzales is the kind of guy who can be pushed to the left by ambient pressures and influences, just as O'Connor was. And who's to say he's not a moderate already?

A status-quo appointment (Gonzales replacing O'Connor) is unacceptable because the status quo is unacceptable. We need to move the court to the right. If we don't, it will continue to move our jurisprudence to the left, as it has in the last several years.

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