Analysis: Matt Drudge, the White House, and Two Supreme Court Vacancies
on May 9, 2005 at 11:03 am
For a while over the weekend, the major banner headline (since reduced in size) on the Drudge Report was: “White House Plans for 2 Supreme Court Vacancies.” The story tells us that “the DRUDGE REPORT has learned” that “President Bush’s top political and legal advisers have been quietly planning for the possibility that two Supreme Court justices will step down.”
This story seems to be a play on the word “plan.” It gives the impression — certainly false — that the White House has information that two Justices intend to retire at the end of the Term.
In fact, the Bush White House this year — like the Bush White House in the past and the Clinton White House before it — is certainly prepared to recommend multiple nominees to the President in the event of one or more retirements. There has been (too) abundant speculation about the retirements of the Chief and Justice O’Connor for at least eight years. No doubt, the White House are “planning” for three retirements in the narrow sense that they could put forward nominees for three retirements, including the oldest member of the Court — Justice Stevens. (Incidentally, this latter scenario is not going to happen: we saw Justice Stevens recently at a wonderful event for Georgetown’s terrific Supreme Court Institute — he looks very healthy and happy.)
To the extent the Drudge Report story has any basis in fact, the “planning” is game planning for the prospect of managing two near-simultaneous confirmation proceedings. That is a serious logistical problem for any White House. (Indeed, the prospect of those logistical difficulties, combined with the sense that the Senate may descend into complete partisan warfare over one or more Supreme Court nominations, is probably all the incentive that a second Justice would need not to retire in the same year as one of his/her colleagues.)
The planning for two confirmations is sensible for another reason in any event: even if only the Chief retires, there may be two confirmations – one for the elevation of a sitting Justice and a second for the appointment of a new associate Justice. That scenario also seems quite unlikely to play out. As I just noted, the logistical problems are substantial.
In addition, there seems little to be gained from elevating an associate Justice. From the very little that I know, it seems that Justice Thomas’s colleagues would appreciate and enjoy him as the Chief. But I doubt he wants to go through the confirmation fight, and I seriously doubt that the White House wants to give Democrats a vehicle to slow down the process. After all, in the elevation scenario, the process of confirming a new Chief has to be completed before the process of confirming a new associate Justice can formally begin.
Justice Scalia would be a wonderful — indeed, singular — public advocate for the conservative originalist jurisprudence the Administration favors. But that too would be a confirmation war, and there probably is something to the idea that Scalia’s sometimes biting tone makes him less well suited to running the institution.
The only serious candidate for elevation that would produce a smooth confirmation and that would produce political benefits for Republicans is Justice O’Connor. Obviously, we have never had a female Chief Justice. And in purely political terms, it would not be surprising if the Administration were to offer Democrats the elevation of O’Connor as part of a package with a more conservative associate Justice.
But elevating Justice O’Connor has a substantial downside for the Administration: it would greatly increase the odds that she would stay on the Court rather than retiring. Chief Justices tend to stay in that position for quite a while. The terms of Rehnquist and Burger, for example, approach nearly two decades. I doubt that the Bush White House would do anything to discourage her from leaving and opening a slot for a more conservative nominee.
It is, after all, the O’Connor slot that is far more central to the ideological balance of the Court than the replacement of the Chief. It is doubtful that the Chief’s replacement would be much more conservative than he is (at least not in a way that could attract four other votes), whereas her replacement certainly could tip the Court in a variety of areas.
And don’t even think for a second that this Administration would elevate Justice Kennedy after Lawrence, Roper, etc.
So, as I said, I don’t think the White House would elevate a sitting associate Justice. But you never know – and indeed the White House staff in all likelihood doesn’t know. Although the White House counsel’s office and the Attorney General no doubt have recommended candidates in mind for a nominee, the President obviously gets to decide and in all likelihood has not given his final say. (That’s true if for no other reason that the President is unlikely to have met personally with some of the leading candidates.) So, the Administration staff needs to be preparing for two confirmations, even if for only a single retirement.
Update: Orin Kerr makes a simlar point at Volokh: “Of course, planning alone doesn’t mean much; Presidents have been planning for an opening in the current Court since Breyer arrived in 1994.” And Stitch in Haste notes an earlier post along the same lines: “Even a sitting Associate Justice has to be confirmed by the Senate before becoming Chief Justice. So first would come that confirmation, then another confirmation to fill the corresponding Associate Justice position. Why should Bush squander his “capital” that way?”.
