O'Connor Will Stay, But Who Will Replace Her?

I just watched Bush's appearance to nominate Roberts for Chief. That's what I figured would happen when I heard the news of Rehnquist's death: there were rumors that Roberts was being groomed for Chief, and the mechanics of having three confirmation hearings rather than "just" two would have been very difficult for the WH and for the Senate.

I was surprised, though, to hear Bush's precise language -- the part when he said that now he will focus on a replacement for Justice O'Connor. Bush could have framed today's choice as being to elevate Roberts to Chief even as Roberts's nomination is to replace O'Connor, and he could then have said that he would now focus on finding an Associate Justice to replace Rehnquist.

What's the difference? Well, there are two differences:

1. By converting Roberts's nomination to be a replacement for Rehnquist rather than for O'Connor, Bush most likely ensures that O'Connor will be on the Court for the coming term.
   

   I say this because her resignation letter stated that she would remain on the Court until her replacement will have been confirmed. Since there is zero chance the Senate can run two confirmation hearings in 4 weeks, no replacement will have been confirmed until after this session begins on October 3rd. My understanding is that the Court's sessions are not modular: oral arguments take place, then the Friday of the week in which these arguments happen the Court holds a conference in which preliminary votes are taken, and then opinions are drafted and circulated, with final votes (and occasionally changes in the outcome) occurring over an extended period of time. This rhythm would seem to preclude an intra-term change of personnel -- not that it can't happen, just that it would seem very disruptive.
   

   Why does it matter whether O'Connor will be on the Court for the whole term? Well, a number of cases in which O'Connor was widely considered likely to be the swing vote are scheduled for this term.

   In particular, there is Ayotte v. Planned Parenthood of Northern New England, the case involving New Hampshire's parental consent restrictions on minors' abortion rights. This case, which resulted in the law's being struck down at the appellate level, turns on what test courts should use in determining whether New Hampshire's law is too restrictive. The First Circuit applied the "undue burden" test that O'Connor first expounded in the 1992 Casey decision that preserved Roe v. Wade, while the state is arguing for a much more permissive standard on its ability to regulate abortions (see this article by Linda Greenhouse for more details).

   One problem that could occur with just 8 sitting Justices is ties. When the Court reaches a tie vote, the lower court's decision is automatically affirmed for that case and circuit, with no nationwide precedent established. So it's clear why O'Connor's staying on would be a procedurally desirable result.

   The problem for Bush and his rightwing base is that having O'Connor still on the Court makes it exceedingly likely that they will lose on Ayotte, as well as some other important cases coming down the pike. In their own terms, they'd be better off with a precedent-neutral tie.
   

2. The second difference is that now in choosing his second nominee, Bush will have to deal with a stronger version of the mantra "he should nominate a moderate like O'Connor". There'd have been some of this if he had framed his second nominee as a Rehnquist replacement, but now Democrats can say "We told you Roberts is really rightwing, and look -- now the President has proved our point by nominating him to replace the much-more-rightwing-than-O'Connor Chief Justice."
   
   Bush will face a replay of the pressures that buffeted his choice in July, only now the stakes are higher for both sides. Back then, no one knew when Rehnquist would leave the Court, and both sides could tell themselves things they wanted to hear regarding what would happen when Rehnquist did leave. Now the stakes have been doubled, and there is no room for either side's base to budge. Democrats will face enormous pressure to oppose any activist conservative to the hilt, while Bush will face equal pressure to nominate the sort of activist who could read this text

   The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state
   

   and think that "another state" means "any state" (see this post for more on the oh-so-active rightwing reading of the 11th Amendment).

Had Bush framed today's move as elevating O'Connor's replacement, John Roberts, to Chief Justice, he could have had his cake and eaten it, too: a Court without O'Connor this term, and a really rightwing replacement for Rehnquist with much less noise.

I'm a bit surprised that the WH didn't figure this out.

Update: Yale Law Prof Jack Balkin says some of the same things here and in a cross-post at TPMCafe.