Posted by Orin Kerr:
Planning for A New Chief:
Tuesday's [1]New York Times has a notable article on the
Administration's plans for the replacement of Chief Justice Rehnquist:
[F]or senior White House officials, as well as a handful of
others who follow the court closely, a working assumption about
what is going to happen has already taken shape. The strong
expectation, senior administration officials and others said, is
that Chief Justice Rehnquist is making his best effort to serve out
the remainder of the term that ends in June before resigning. And
the only question, they say, is whether the 80-year-old chief
justice, who is suffering from thyroid cancer and the effects of
his treatment, will be able to do so.
The people who said that this was the assumption in the White
House included senior administration officials, senior
Congressional officials and people who have been consulted by
senior White House officials.
Top White House officials have discussed the situation, one of
those people said, and have concluded that they will have to be
ready for President Bush to make known his intentions for replacing
the chief justice no later than June but possibly sooner. They have
prepared ever-narrowing lists of candidates to be nominated for the
court, one official said.
. . . .
. . . [I]t is improbable that the expectations about Chief
Justice Rehnquist stem from any direct signal from him. Rather, it
is the combination of several factors, including his age and
illness and his statement years ago that he well understood the
tradition in which justices try to leave when the White House is
occupied by a president of the same party as the one who nominated
that justice.
According to the Times, the four key names on the Administration's
short list are: 1) Michael W. McConnell of the United States Court of
Appeals for the 10th Circuit, 2) John G. Roberts of the United States
Court of Appeals for the District of Columbia, 3) J. Harvie Wilkinson
III of the United States Court of Appeals for the Fourth Circuit, and
4) J. Michael Luttig of the United States Court of Appeals for the
Fourth Circuit. Mentioned as "[a]nother possible candidate" is Samuel
A. Alito of the United States Court of Appeals for the Third Circuit.
The notable part about this short list is that the candidates are
the intellectual heavy hitters culled from previous lists. All four of
the candidates on the primary list are themselves former Supreme Court
clerks, and they are widely considered to be some of the brightest
stars in the federal judiciary. Alito has stellar credentials and is
right there with them, too. There isn't a dud in the group.
Which judge the President will select for the Court likely depends
on what kind of Chief Justice the President wants to see. Wilkinson
probably would be the most like Rehnquist: a reliable conservative but
with strong tactical instincts. Luttig has the harder ideological
edge, which is an asset if there are more openings for Bush to fill
but a potential liability if he needs to keep Kennedy and O'Connor on
board. Both Roberts and McConnell are brilliant, articulate and could
be intellectual leaders on the Court for a generaton, but both are
also fairly new and relatively untested as lower court judges. Alito
would be a reliable conservative and could excel at building consensus
across the ideological spectrum.
At this point, my own preference is John Roberts first and Michael
McConnell second. I think Roberts and McConnell are the two judges on
the short list with the strongest potential to be "great" Chief
Justices. I have a preference for Roberts not only because he is
considered [2]one of the best (if not the best) Supreme Court lawyers
of his generation, but because his opinions as a D.C. Circuit judge
have been simply outstanding.
I've read about a half dozen Roberts opinions in the last year, and
they were all models for what an appellate opinion should be. Tight,
focused, scholarly, and balanced. They were beautifully written, too;
the guy can make even FERC disputes seem interesting. I also saw a
dash of Robert Jackson in them -- a sort of perspective that reflects
a deep understanding of how this case fits into other ones. Finally,
Roberts pulls it off without being flashy. His opinions are highly
readable but don't beg for more attention. Excellent stuff.
References
1. http://www.nytimes.com/2005/02/22/politics/22memo.html?
2. http://www.law.com/jsp/article.jsp?id=1108389946956
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