Law Prof Michael Froomkin at Discourse.Net predicts that Bush's next appointment will be an extremist who will re-ignite the culture wars.

There are a lot of people who think that George Bush's political weakness will result in a more moderate appointment to replace Justice O'Conner to the Supreme Court. They are deluding themselves. In fact, it's worse than wishful thinking: it's exactly backwards.

The weaker Bush gets, the more certain it is that he (or Cheney or Rove) will appoint someone certain to reverse Roe v. Wade.

by TChris

The NY Times faithfully reprints 55 pages of speeches given by members of the Senate Judiciary Committee today, proving only that this was their day, not John Roberts.’ Pages 55 to 57 (beginning here) reprint Judge Roberts’ opening statement. It is, as one would expect, unremarkable. He spoke of the virtues of precedent and of the limited role judges play in a political process. Judges, it seems, are little more than scriveners who consult the law and apply strict logic to resolve legal disputes in the most reasonable way. All true in theory, but choosing the most reasonable application or interpretation of a law often depends upon which of two or more competing policies the judge favors. If that weren’t true, smart and logical judges would all agree on the correct outcome in every case. The central role played by judicial philosophy (the collective policy preferences favored by an individual judge) went unacknowledged in today’s statement.

Sentencing Law and Policy reports on "buzz" that President Bush may pick Alberto Gonzales or Larry Thompson for the second Supreme Court vacancy.

I would support Larry Thompson's nomination for the Court. I supported him when he was under consideration for Ashcroft's job. I know him through our joint participation in criminal defense organizations over the years, particularly the American Board of Criminal Lawyers. I have had long discussions with him -- and his wife -- at several dinners at these meetings, and I believe he is dedicated, principled and up to the job. I've previously said he would receive my endorsement for Supreme Court Justice:

by TChris

Howard Kurtz surveys (with, thankfully, little comment of his own) various reactions to the president’s decision to substitute the conservative John Roberts for the conservative William Rehnquist. The reaction most likely to stimulate severe illness comes from Pat Robertson, who is “thankful” that Hurricane Katrina may have “brought [Roberts] some good.” Perhaps Robertson was praying for a disaster that would kill thousands so that senators would be distracted from Roberts’ confirmation hearings.

Slightly less stunning is conservative Bill Kristol’s concern that by swapping a conservative Roberts for a conservative Rehnquist, the president may feel pressure to nominate a more moderate candidate for Justice O’Connor’s seat. Kristol thinks that would be a betrayal of the president’s base, and he fears that Attorney General Gonzales might be the “moderate” who would emerge from that scenario. The notion that Gonzales, who regards the Geneva Conventions as "quaint," is insufficiently conservative to satisfy the right wing is astonishing. Maybe the president should just go with his base and nominate Pat Robertson instead.

by TChris

Mark Levin gripes about the Supreme Court in this Newsweek interview. He argues that the Supreme Court is the “most powerful” branch of government and that its power is “unchecked.” In fact, the Supreme Court has the final word only when it interprets the Constitution. If the Court interprets or applies a statute in a way that Congress doesn’t like, Congress can (and frequently does) change the statute, effectively nullifying those Court decisions.

While complaning that the Court has usurped power from the states and from the federal legislature, Levin cites Justices Scalia and Thomas as his current heroes. It’s interesting that he didn’t mention Rehnquist, who led the mini-revolution in Commerce Clause jurisprudence, invalidating two pieces of federal legislation. Scalia and Thomas helped Rehnquist form the majority in those cases, but Levin fails to explain why he holds his heroes blameless for their own role in a supposed usurpation of federal legislative power.

by TChris

Disregarding his mother's admonition not to speak ill of the dead, Alan Dershowitz discusses the legal legacy of Chief Justice Rehnquist.

So here’s the truth about Chief Justice Rehnquist you won’t hear on Fox News or from politicians. Chief Justice William Rehnquist set back liberty, equality, and human rights perhaps more than any American judge of this generation.

Update: Laurence Tribe takes a friendlier, but still realistic, view:

Crooks and Liars has results of a CBS poll from last week:

In a shift from July, the public now thinks the Senate should consider a Supreme Court nominee’s positions on issues in addition to his or her legal background. According to last week’s poll, 57% said a nominee’s opinions on issues should be considered, while 33% thought the Senate should consider only a nominee’s legal qualifications and background. Even more Americans said a nominee’s position on the issues should be considered than did so during the nomination processes of Clarence Thomas and Robert Bork

by TChris

As a matter of priority, the death of the Chief Justice is dwarfed by the urgent need to help the victims of Hurricane Katrina. Come Tuesday, senators should table all other action in favor of managing a crisis that seems beyond the competence of Homeland Security. The confirmation hearing of John Roberts should await a less pressing time, and neither the president nor the Senate should consider Rehnquist’s replacement until the public health crisis confronting the gulf coast has been resolved.

Some will argue that Rehnquist’s death requires the immediate confirmation of Judge Roberts. Not so. Only six justices are needed for a quorum. The seven sitting justices are capable of carrying on the Court’s business. They may decide not to decide cases until an eighth or ninth vote is available, a procedure the Court’s rules would permit. In some cases, the seven may have the five votes that would arguably render an eighth or ninth vote superfluous. While the Court benefits from the collegial debate that a full Court can provide, the sitting justices are capable of deciding which cases would benefit and which would likely be unaffected by an additional vote or two.

posted by Last Night in Little Rock

Pat Robertson, of the 700 Club, who fervently prayed for vacancies on the Supreme Court, when not asking the government to assassinate a foreign president, got his prayer answered on Saturday night with the death of Chief Justice William Rehnquist.

It was not the vacancy he was hoping for.

Now the game of musical chairs begins. Justice Antonin Scalia, appointed by Reagan in 1986 will undoubtedly move to Chief. He's a known quantity, so confirmation by the Republican Senate will be quick.

Who, then, to replace Scalia?