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Election of Remedies: The Rehnquist Factor

Imagine the following scenario. During the 2000 election recount, a member of the Supreme Court dies. With Congress out of session, President Bill Clinton nominates a new justice to serve as a recess appointment. The new justice votes to continue the recount and affirm the Florida Supreme Court ruling in Bush v. Gore. Al Gore becomes President. With this scenario as a backdrop, conservative Chief Justice William Rehnquist announced his diagnosis with thyroid cancer last Monday. He asserted he would return to the bench today. That did not happen.

There is no guarantee that the Supreme Court will be involved at all in the election aftermath. Secondly, the Senate will resume on November 16th. If Mr. Bush wants to replace William Rehnquist without advice and consent of the Senate, he must do it within two weeks. Or he must do it after the Senate adjourns for good. Given that the Senate is under Republican control, one wonders if Bush would simply wait a week or two, and then make his appointment. Bush v. Gore, after all, the US Supreme Court did not get involved until December of 2000. Yet, the Senate has the filibuster, and this weapon means that Bush could be deprived of this strategy if the Senate maintains quorum. Given that the Supreme Court would likely rule before Christmas, this is the riskier strategy.

Yet, the possibility remains there will be no Bush v. Gore style climax. Would George W. Bush still attempt a recess appointment? The answer here is yes. The Democrats will retain 43 seats in the Senate irrespective of what happens on Tuesday. That is enough to kill any unpopular nominee. However, the Senate is reelected in thirds. Should the Democrats lose a few more seats in 2006, this would pave the road to Bush being able to permanently appoint more conservative judges. Assuming there is no electoral fracas, Bush would likely favor this more, making his selections during the inactivity of the holiday season.

However, there is still one more scenario. If Rehnquist resigns or retires after the Senate reconvenes but before all litigation is settled...does he propose a moderate vote for himself and ensure his electoral victory or a more conservative justice after the court rules with only eight justices? (The lower court ruling would then hold in a 4-4 tie.) this, as any law student would say presents a most confounding election of remedies


posted by Thomas at 3:54 PM 0 comments