Balkinization  

Monday, September 05, 2005

The Roberts (Re)Nomination: A Short Term Tactical Ploy

JB

President Bush's nomination of John Roberts to be Chief Justice is a shrewd short-term political move from a President who has repeatedly demonstrated a mastery of short-term political tactics. If Roberts were confirmed, the Court would remain with nine Justices because O'Connor has promised to stay on until her successor is confirmed. Moreover, it would ensure a conservative Chief Justice, instead of having the most senior Justice, John Paul Stevens, exercising day to day administrative control and making opinion assignments. (Although this is a marginal consideration, it is not completely unimportant).

Switching Roberts to Rehnquist's spot also means that a staunch conservative replaces a staunch conservative, rather than a swing Justice like O'Connor. This might make Roberts’ confirmation marginally easier, particularly when Bush's political capital has been debilitated by the combination of the fallout from Hurricane Katrina, problems with Iraq, a weak economy and rising gas prices. Given that Bush still wants to pursue an ambitious second term agenda, he needs to expend as little political capital as possible now. He is calculating that confirming Roberts as Chief might allow him to give his conservative base a relatively easy victory with relatively high salience because of the symbolic importance of the position of Chief Justice.

Perhaps most important, Bush puts off for a few days, or perhaps even a few weeks, an even more difficult choice: who will replace Justice O'Connor as associate Justice. Bush will face renewed calls to appoint a woman or a minority for this slot, and his base will demand that a Justice far more conservative than O'Connor replace her in order to swing the Court further to the right. All of the same issues that Bush faced when he originally nominated Roberts will reemerge, but with heightened concern on the part of the left and the right. That is because Rehnquist's slot, which might have become vacant a few years down the road will now have been filled for several decades with an equally solid conservative. Hence filling O'Connor's slot becomes the major avenue for altering the Court's direction in the foreseeable future.

To be sure, Bush is no doubt contemplating that John Paul Stevens may also die or retire in the next three years, which would give the President an even more profound influence on the future direction of the Supreme Court and American constitutional law. But that decision is not yet before him; the decision about O'Connor is before him, and he knows that this is his best shot. The problem for Bush is that everyone else knows it too. And that means that the fight over O'Connor's slot threatens to be even more contentious than before if Bush makes a mistake.

In sum, Bush’s decision to switch Robert’s to the Chief Justice slot is prompted by short-term tactics. But it may have long term repercussions.


Comments:

Very interesting points. Which I guess makes it self-serving for me to say that I posted similar ones over at CCM.

Prof. Balkin, I'm interested in what you think this will mean for cases like Ayotte, on which we might have anticipated Roberts's replacement of O'Connor to tip the scales.

If O'Connor stays for the term, then (by construction) these cases are likely to be decided opposite to the no-O'Connor, with-Rehnquist counterfactual case. In that event, will they just be overruled in the future after O'Connor's eventual replacement? Or will they stick as precedents?

On the other hand, if O'Connor leaves before she is replaced, then there will likely be some ties this term....or perhaps the Court will just re-schedule such cases after her replacement is seated.

What do you think of these possibilities?
 

I guess it depends on when the case is scheduled. If the troubling case(s) is scheduled early, maybe they can push it back, expecting a new justice will be confirmed in the fall sometime? Or, hold them over for reargument if it's 4-4?

This is a good move in various ways, since I think Roberts is a good fit for the Rehnquist slot. OTOH, I wonder how his novice position will work in the CJ role.

SCOTUSBlog predicts O'Connor will retire, in part to care for her husband. And, this would logically mean soon, since why stay if she won't be on the bench when the rulings are made, rulings that will not be made to later?
 

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