Tuesday, September 06, 2005

RIP William Rehnquist

SCOTUSBlog has several posts up on the passing of Chief Justice William Rehnquist:

Statements made in memorial by his colleagues on the Supreme Court.

Statements made by President Bush and Rehnquist's potential successor, John Roberts.

Details of planned memorial services.

They also analyze the effect Justice Rehnquist's death has on Justice O'Connor's replacement search:
Various folks in the blogosphere and elsewhere have been wondering whether a new nomination is necessary, and/or whether Justice O'Connor's resignation would become effective if and when Judge Roberts is confirmed to be Chief Justice.

A new nomination is required. The Constitution itself does not specify how many Justices will comprise the Supreme Court -- but it does expressly contemplate that there will be a "Chief Justice" who will preside (as Rehnquist did) over the trial of the impeachment of a President (art. I, sec. 3, cl. 6). Although the question is uncertain, I don't think that that constitutional provision, standing alone, would require that the position of "Chief Justice" be treated as a distinct "Office" for purposes of the Appointments Clause (art. II, sec. 2, cl. 2). Thus, perhaps Congress could have provided, for instance, that the role of Chief Justice would be rotated among the Justices (cf. Weiss v. United States, 510 U.S. 163 (1994)), or be held by the senior-most Justice (cf. 28 U.S.C. 45), or some such thing -- in which case, no separate nomination would be required.

But Congress didn't do so. Instead, it established that "[t]he Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum" (28 U.S.C. 1); and in numerous other statutes, Congress gave particular responsibilities and authorities to the Chief Justice, and a higher salary, to boot (5 U.S.C. 5332 -- $203,000 and $194,300, respectively). [UPDATE: Remainder of this and the following paragraph edited slightly.] Ever since President Washington's eighteenth-century nomination of Associate Justice Cushing to be the second (confirmed) Chief Justice, the political branches have treated these statutes (and their predecessors) as establishing a distinct office of the Chief Justice, requiring separate nomination and confirmation. That's why, for instance, President Reagan was required to nominate Justice Rehnquist to be Chief Justice in 1986, rather than simply "assigning" him to that spot. (Earlier, Justices White and Stone also were separately nominated to be Chief Justice.)

. . .

What does the new nomination mean for the O'Connor retirement? Well, if she takes no further steps, then I think that her office of Associate Justice will not become vacant in the event Roberts is confirmed as Chief Justice, by virtue of her formal letter to the President of July 1st. In that letter, Justice O'Connor wrote: "This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor."

Because a Chief Justice Roberts would fill an office distinct from that of Associate Justice, he would not be a "successor" to Justice O'Connor's office, and thus the condition of her retirement would not be satisfied.

If she takes no further action.

It's an interesting question, but I'd prefer to pause and honor Justice Rehnquist before we move on to the political ramifications of his death. Justice Scalia had this to say:
"Chief Justice William H. Rehnquist led a philosophically diverse group of Justices through 19 years in which public attention was focused upon the Supreme Court to an unprecedented degree. His keen intellect and sound judgment commanded the respect of his colleagues, and his personal qualities of considerateness and fairness won their affection. His death is a loss to the Court, to all the federal judiciary that he headed for so long, and to the Nation. It is a double loss for me; he was my friend long before he was my Chief. May he rest in peace."


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