TCS Daily

Searching for the Next Chief Justice

By Pejman Yousefzadeh - December 23, 2004 12:00 AM

Recently, blogger and Yale law student Will Baude wrote a piece for The New Republic on how the Bush Administration might conduct a search for a nominee to replace Chief Justice William Rehnquist should Rehnquist want to retire due to poor health.

Baude argues that the Bush Administration would be wise to look to a judge not on the Supreme Court to replace Rehnquist. This will have the advantage of avoiding two confirmation fights (one for the elevation of an Associate Justice to the Chief's position, and another for a new Associate Justice). It will avoid subjecting Associate Justices like Clarence Thomas and Antonin Scalia -- two names often mentioned running to replace Rehnquist -- to having their voting records, judicial philosophies and personal lives considered anew by the United States Senate. It will help shake up the lineup at the Court and bring about change (perhaps not a negligible consideration given the fact that the current Court has been together for over ten years). Finally, besides Justice Thomas at age 56, the other potential successors to Chief Justice Rehnquist are probably too old to be considered by a President who -- like all other Presidents -- wants to leave a legacy on the Court. Justice Scalia is 68 and Justice Sandra Day O'Connor is 74. Justice Thomas may not be considered simply because neither he nor the Bush Administration will want to endure the kind of bloodbath that accompanied his nomination to the Court in the first place.

Baude's points are well taken. However I want to offer the caveat that because of the striking degree of collegiality among the current members of the Court -- a collegiality that Baude notes in his piece -- the calculation may be made that promoting a particular Associate Justice to the Chief's position may be considered to be best after all. Such a promotion may help promote and maintain collegiality, and the nomination of a new Associate Justice would likely not disrupt a harmonious working relationship too much -- especially since the new Associate Justice would be the most junior Justice on the Court, and would likely feel the need to acclimate himself/herself to the other Court members instead of the other way around.

Still, even with this caveat, it is likely that the Bush Administration will take Baude's advice and pick an outsider for Chief Justice should Rehnquist retire. The question now becomes who the primary contenders will be. Some possible picks are below:

  • One candidate often talked about is James Harvie Wilkinson, who sits on the U.S. Court of Appeals for the Fourth Circuit. Judge Wilkinson certainly had Republican credentials, having run as a Republican for Congress in 1970 and having served in the Reagan Justice Department from 1982 to 1983 until President Reagan nominated him to the Federal bench. The political upside to Wilkinson's nomination is that he is seen as likable, respectably conservative, and a very good scholar and judge who strikes his peers as intellectually impressive. The downside is that Judge Wilkinson is 60 years old and the Bush Administration may want to go younger.

  • If the Administration does want to go younger, Judge J. Michael Luttig -- who also sits on the Fourth Circuit -- may be a prime choice at the tender age of 50. Judge Luttig is widely praised as very intelligent, and his conservatism has won him many admirers among the Bush Administration's base of supporters. One issue that may come up in a Luttig nomination is the fact that he gave a victim impact statement during the penalty phase of the trial of one Napoleon Beazley, who followed Judge Luttig's father home, shot and killed him, and then took the senior Luttig's car. (Judge Luttig's mother only survived because she feigned death after being run over by Beazley while he was driving the car.) Judge Luttig was attacked as having somehow behaved improperly as a Federal judge when he gave the victim impact statement, and because of his ties to current members of the Court, Justices Scalia, Thomas and David Souter recused themselves from hearing or reviewing a petition appealing Beazley's case. In the end, however, it is hard to believe that Judge Luttig will be penalized for having done what any loving son would have done in the same circumstances, and the nomination will come down to an ideological fight over whether a conservative like Judge Luttig should be elevated to the Supreme Court.

  • There was a great deal of speculation that President Bush may nominate the current White House Counsel Alberto Gonzales for a seat on the Supreme Court-thus making Gonzales the first Hispanic to be elevated to the Court. But since Judge Gonzales has recently been nominated as the next Attorney-General, his name is likely out of the running for any near term Supreme Court appointments. If President Bush still wishes to nominate a Hispanic, he may look to Judge Emilio Garza of the Court of Appeals for the Fifth Circuit. Judge Garza is 57 years old and could conceivably serve for 30 years or so. Judge Garza is well known for his opposition to abortion, and has written on the need to overturn Roe v. Wade (the case was Causeway Medical v. Ieyoub), so his nomination will almost certainly bring up a fight over that issue.

  • A perennial favorite for a position on the High Court has been Judge Edith Jones of the Fifth Circuit Court of Appeals. Judge Jones is a trailblazer -- being the first woman to have ever made partner at the law firm of Andrews & Kurth, where she practiced after graduation from law school at the University of Texas, Austin. Judge Jones has made her name in bankruptcy law, but like Judge Garza, she is well known for her opposition to abortion -- opposition she made plain in her concurring opinion in McCorvey v. Hill. Judge Jones is 55 years old, and has strong connections with the Bush family -- having been considered for a Supreme Court seat by President Bush the Elder when the late Justice William Brennan retired in 1990.

These are only a few of the names that are mentioned as possible successors to Chief Justice Rehnquist but if the Bush Administration decides -- as Will Baude has -- that it would be best to pick an outsider as the next Chief Justice, the four judges mentioned in this article will receive serious consideration. But this is only a partial list, and it should surprise no one if President Bush decides to nominate a dark horse candidate to the Supreme Court. After all, David Souter was on no one's radar screen when Justice William Brennan retired, and yet President Bush's father nominated him to the Supreme Court. Given that Justice Souter is quite unpopular with conservatives, the current President Bush will likely be wary of picking a Souter clone. But he might not mind springing the kind of political surprise his father did.

The author is a lawyer and frequent TCS contributor.


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