Washington The death of Chief Justice William Rehnquist just days before Senate confirmation hearings for John Roberts set off a scramble in Washington Sunday and presented President Bush a historic opportunity to put his stamp on the Supreme Court for decades to come.
As he contemplates his second court vacancy to fill, Bush is considering a plan to install Roberts as chief justice rather than as associate justice replacing retiring Sandra Day O'Connor, senior administration officials said. With the Roberts vetting process already well advanced and his confirmation on track, such a shift could guarantee a chief justice would be in place by the time the court opens its term Oct. 3.
A switch like that would be unprecedented in modern times. If the president does not opt for that course, officials said, he will return to the same list of potential candidates he scrutinized in picking Roberts in July. Among those at the top of such a list would be his close friend, Atty. Gen. Alberto Gonzales, his former deputy attorney general, Larry Thompson and a handful of federal appeals judges, including Edith Hollan Jones, Edith Joy Clement, J. Harvie Wilkinson, J. Michael Luttig, Emilio Garza and Priscilla Owen.
The sudden opening at chief justice confronted the White House with another challenge at a volatile moment. Given his deteriorating health, Rehnquist's death came as no surprise, but the timing made the politics complex, coming in the midst of a national crisis touched off by Hurricane Katrina and just prior to the Roberts hearings set to begin Tuesday. While senators discussed postponing the hearings, Bush advisers gathered at the White House to consider strategy amid ongoing recovery efforts in the Gulf Coast. Some conservative advocacy groups already laid down markers, urging Bush not to appoint Gonzales, whom they consider too moderate.
As they sift names, White House advisers are weighing whether it would be better to announce a nominee quickly or to wait until after the situation in the Gulf Coast is better in hand and the Roberts confirmation process is complete. With his poll ratings at an all-time low, gasoline prices at an all-time high and U.S. troops suffering high casualties in Iraq, Bush confronts a perilous point in his presidency.
Bush mentioned none of this in his public comments Sunday, instead paying tribute to Rehnquist in a brief televised appearance in the Roosevelt Room and promising to move expeditiously in naming a new chief justice.
"There are now two vacancies on the Supreme Court and it will serve the best interests of the nation to fill those vacancies promptly," Bush said. "I will choose in a timely manner a highly qualified nominee to succeed Chief Justice Rehnquist."
Three battles possible
For Bush, the situation represents a rare chance to cement a more conservative court, and his own legacy at the same time. No sitting justice has died in office in more than a half-century and no president has installed two newcomers to the court at the same time since 1971 when Richard Nixon first appointed Rehnquist to fill one of a pair of vacancies. When Ronald Reagan tapped Rehnquist to move up from associate justice to chief justice in 1986, it created a second opening that was filled by Antonin Scalia. If Bush followed suit by elevating Scalia or Clarence Thomas to chief justice, it would mean three confirmation battles at once.
"This is the most historic moment in Supreme Court history in our lifetime, no question about it," said Jay Sekulow, chief counsel at the American Center for Law and Justice, founded by evangelist Pat Robertson, and an adviser to the White House on court issues. "These are justices who are going to serve for decades."
The chief justice casts only one vote on the nine-member court but wields influence in important ways. As the titular leader, the chief justice can try to set a tone and philosophical direction. When in the majority on a case, the chief chooses which justice writes the decision, shaping the contours and scope of a ruling. The chief also runs the court's administrative functions as well as those of the broader federal judiciary.
With Rehnquist's death, the senior associate justice fills in as chief - in this case Justice John Paul Stevens, the court's most consistent liberal voice. For that reason alone, Republican advisers said, the White House will be eager to get a replacement for Rehnquist in place. An eight-member court that votes 4-to-4 results in the lower court decision standing without setting precedent.
Choosing a chief justice
Bush on Sunday began meeting with senior aides, including Chief of Staff Andrew Card and White House counsel Harriet Miers, to discuss possible nominees. Aides pulled out files from candidates considered in July.
"We're not starting from standing still," said one senior official, who like others declined to be named because Bush insists on a confidential process. "We have a process that has been developed ... and now we're in an execution phase." The official said the decision and its timing would be made independent of the hurricane relief efforts. "I don't think Katrina will influence that," he said.
Bush seems unlikely to name Scalia because he wants someone young enough to be chief for a generation, according to advisers, nor is he likely to ask O'Connor to become chief, as some Democratic senators urged. While Clement, a judge on the 5th Circuit Court of Appeals, was a finalist behind Roberts in July, several Republicans close to the White House said they doubted she would be named chief justice.
The idea of making Roberts chief justice has natural appeal. Roberts, a former lawyer in the Reagan and George H.W. Bush administrations who now serves as a judge on the U.S. Circuit of Appeals for the D.C. Circuit, was first interviewed by the White House in April not for O'Connor's seat but in the expectation that Rehnquist would retire or die.
As a former Rehnquist clerk, Roberts could be expected to continue in the same conservative course and at age 50 he would have a long tenure in the top slot. After six weeks of media scrutiny, he is also a known commodity who has not generated strong opposition among Senate Democrats.
Administration officials said the option was under consideration but would not handicap how likely it is. "Roberts is obviously qualified to be chief justice," said one top official. "The question is if there are arguments on the other side and there are. We just have to weigh them."
One argument on the other side is not to do anything to complicate a confirmation process for Roberts that has already gone smoothly. And Bush knew when he picked Roberts for associate justice that he would likely have a chance to name a chief justice soon enough and so the president may already have someone else in mind.