This Theory Is Too Wild For Me

Here's a wacky theory: what if Chief Justice Rehnquist resigns due to ill health, and the court is split 4-4 when it has to decide the election. Apparently the Bush folks are preparing a contingency plan for a recess appointment.

I'm going to go out on a limb here: not going to happen. Why? Rehnquist will not resign in the next few weeks. Not his style, not at all. Of course, if someone on the Supreme Court were to actually die, then all bets are off on this one. And that would create a stir….

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10 Responses to This Theory Is Too Wild For Me

  1. Well, it is how we ended up with Earl Warren…and Brennan and Stewart, too…and all three right before elections, with confirmations coming with a new congress the following spring…

    But I’m somewhat relaxed. Even if Bush put Gonzalez in an empty seat, however incapable he may be of briefing both sides of an issue (whether or not 57 people die as a result) it still results in a boon for those who oppose racial prejudice…even if he puts someone in the seat who shares his own belief in a higher power’s natural law evidently only apparent to the Republicans, how do you worsen the Court’s view on the true nature of the establishment clause from the standpoint Rehnquist takes? (As I read the Wallace v. Jaffree dissent, he doesn’t seem to think it even exists)…honestly…who could be worse?

    Yes, I’m knocking on wood as I write this.

  2. Evelyn Blaine says:

    I can’t imagine Bush making a recess appointment to the Supreme Court under any circumstances, let alone in that nightmare situation. It would completely destroy what comity remains in the confirmation process and go a long way toward making the country completely ungovernable: the Democrats would doubtless (quite rightly) pledge to filibuster ALL judicial and executive nominees on principle, and a future Democratic majority in either house could launch an interbranch confrontation that would make the Andrew Johnson era look pacific. Too much risk for not enough benefit.

  3. I’d agree with Evelyn, if I thought GW was capable of risk-benefit analysis. A strong concept of one’s own infallibility and divine direction makes that tough, however.

  4. Andy says:

    Two words: civil war.

  5. Nasi Lemak says:

    I feel a bit uncomfortable to talk about WHR’s health prospects, whatever his evil effect on constitutional law.

    But surely the point is not whether or not WHR *wants* to retire (no) but whether he will *have* to retire. None of the analysis of his treatment seems particularly optimistic about his prospects even in the short term: tracheotomy is not a usual treatment for treatable thyroid cancer. So the big questions: if, after his operation, he is in fact so ill that he cannot carry on? what will the Court do if, in those circumstances, they look likely to be handed a tricky case? will the others talk him into standing down or recusing himself? (shades of Justice Douglas) Will he work from his hospital bed (Justices Jackson and Harlan, I think)? Will his clerks just take over? If he is talked into standing down, *then* there might be a question of a recess appointment.

    And I really do think this administration would make such an appointment, precisely because they seem to lack the ordinary facilities for prospective analysis.

  6. Evelyn Blaine says:

    Out of curiosity, I decided to check if Senate rules provide a means for anyone other than the President (Art. II, Section 3) to call the Senate into emergency session. In general, the answer appears to be no, although on various occasions (mostly in wartime) Congress has adjourned conditionally, providing that the Speaker and the President pro. tem. must call the houses back into session on application of either the majority or the minority leaders (Riddick’s Senate Procedure [1992 edn.], pp. 9-13). It would, I think, be a very good practice for Congress to adopt this as its general rule, in order to prevent abuse of the recess appointments clause by the President.

    I think that even if Bush did recess-appoint a Justice in order to try to get a majority on an election case, it would be almost unthinkable for that Justice not to recuse himself when the time came around. (Even Rehnquist, after all, recused in US v. Nixon.) It would be a breach of judicial ethics so great as to make the bias of the Bush v. Gore five pale in comparison, would earn the bought-off judge eternal ignominy and a good chance of eventual impeachment when next the Republicans lost control of the House; moreover, it might well lead to a Nixon-like collapse of support for Bush among the Republican rank and file. No potential Supreme Court candidate would be both 1) sufficiently cunning and ruthless to merit appointment in such a situation and 2) not sufficiently cunning and ruthless to look after number one rather than following GW off a cliff.

  7. Nasi Lemak says:

    That might be the case if BvG had seen the court’s reputation suffering just a little bit; but on any polling data I’ve seen, its reputation basically didn’t suffer *at all*. In other words, since noone was burned by BvG, why would anyone be burned by doing something a bit worse in a BvK case?

  8. Evelyn Blaine says:

    There’s a lot of difference between making a decision for politically motivated reasons and covering it with a poor argument (BvG) and flat-out failing to recuse in a case of transparent personal interest (putative BvK scenario). The flaws of BvG were apparent to those with some knowledge of const. and election law, but not immediately visible, as such, to the public: lay Democrats assumed the fix was in, lay Republicans denied it, but few non-lawyers could be bothered to figure out all the details. Ideological bias is much harder to prove than a personal stake — with a recess appointee, there would be “something in it for him” — a lifetime job — in a very much more direct sense than in BvG.
    This is far closer to a classical bribery scenario (although the quid pro quo would be very hard to prove) and would be a step too far even for the Busheviks: the precedent of Fortas, I think, still looms large.

  9. Evelyn Blaine says:

    Incidentally, a slightly off-topic question: I am assuming that if the president recess-appoints a sitting Associate Justice of the Supreme Court to be Chief Justice, and the Senate then rejects
    the nomination (or if, for whatever, no nomination of that person follows), the new Chief Justice must leave the Court entirely after the end of the succeeding session, rather than returning to his
    role as Associate Justice. (I.e. that the justice implicitly resigns from the Court and is then reappointed in the distinct and incompatible office of Chief Justice.) This seems the only logical solution, although I think that there is no exact precedent: when the Senate failed to confirm John Rutledge’s 1795 recess appointment as C.J., he resigned immediately, “without finishing the term to which he had been appointed, saying he felt unsuited to the position” (William Ty Mayton, Recess Appointments and an Independent Judiciary, 20 Const. Com. 515, 535 (2003), internal reference omitted).

    But does anyone else have a different interpretation of the way the Recess Appointments Clause
    would work with respect to the high court?

  10. Evelyn Blaine says:

    Incidentally, Mark Moller has picked the Bush v Kerry recess appointment meme up at Slate:

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