Rick Sheridan wrote:
Hi Dad,
Chief Justice Rehnquist hasn't been available for work recently.
Can you describe the implications should he be unable to appear in the long term?
What process would ensue in order to fill up his seat on the bench, and in what timeframe?
What changes to the trend of court opinions could be expected if he is replaced, and who could be likely candidates for the job?
Rick
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Rick is an engineer, one year out of MIT, and working at an aerospace company recently purchased by Boeing, in Orange County. He works on helicopers that don't need pilots. Scary.
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Hi, Rick,
Damn! That is SUCH a tall order.
I thought you were writing to thank me for the restaurant recommendation for your friends who are visiting San Francisco, which I provided so promptly earlier today.
I'll give you a thumbnail:
Supreme Court justices, and all Article III federal judges, hold their posts during 'good behavior." U.S. Const., Art III, Sec. 1.
This means that they cannot be removed except by impeachment for some illegal conduct.
Illness is not a violation of the "good behavior" provision.
In the past, when a justice has become so aged, ill, and infirm that they cannot perform, other justices have gone to him and urged him to step down. Usually he doesn't want to go. After all, this is about all he has in life by this point.
When Rehnquist was young, he and the others had this situation arise with Justice William O. Douglas, who had suffered a debilitating stroke and could no longer perform but wouldn't submit. These are strong-minded people, Rick. They make me seem like a nice guy!
The justices agreed not to decide any cases in which Douglas's was the deciding vote; they'd vote to put such cases over until the next term (year).
Justice Byron White thought this illegal, believing that impeachment was the only constitutional remedy.
Now WHR,CJ, is in the hospital bed. Medical reports are pessimistic that he'll survive another year.
The speculation among the conlawprofs conceives various scenarios.
One is that Bush might, in the case of a death or resignation, make an interim appointment on a temporary basis for which Senate approval ("advice and consent") is not required, at least at first.
That would be seen as incredibly bold and perhaps unlikely. I wouldn't put anything past Bush-Cheney-Ashcroft, however, when it comes to not giving up power.
Someone will move up, perhaps Bush's avowed favorite, Thomas, or perhaps Scalia or O'Connor.
In will then come someone else: Al Gonzales? Ted Olson, who won Bush the presidency by outlawyering Gore last time?
No one knows, I think.
If Kerry wins and a vacancy opens, I DNK who Kerry favors, but since you've been working so hard for him amidst the wilds of conservative Orange County, Bush Country, I authorize you to submit my name, posthaste, before I take a better job. Like Blawg-ing...
Rehnquist has said he reserves the right to continue participating in decision-making while confined.
He can do that.
His clerks will bring papers to his home to review and sign.
He can review tapes of oral argument.
If he is out on sick leave, meaning he cannot participate in the decision of a case or cases, the Court is left with an even number, 8 justices. This opens the possibility of a 4:4 split.
In that case, the petitioner fails of obtaining a majority and loses; the lower court ruling stands and the other side wins, 4:4. Makes for weak precedent.
You need at least five votes to make a decision of the Court.
4:4 means little except that petitioner failed to carry his burden, because one doesn't know whether there will be five votes next time the question comes up.
I really think you'd enjoy my class, Rick, and the surrounding ones, someday.
In the meantime, I'm trying to put what I know on the blog...
Love,
Dad
As far as trends-in-the-Court implications are concerned, this is what the election is about, among a few other things.
More-of-the-Same or New Broom.
In terms of constitutional doctrine, we have a fairly conservative court that does not readily recognize claims of new individual liberty vis-a-vis government.
One more conservative vote on top of Rehnquist's would likely see a woman's constitutional right to choose whether to become a mother go by the boards.
I.e., Roe v. Wade is likely to be further burdened with difficult to meet restrictions, or overruled altogether.
Other people would be controlling one's intimate decisions, the very ones we would most like to be able to make for ourselves, man or woman.
A replacement of the conservative Rehnquist vote with another, single, conservative vote would keep the balance pretty much the same.
The wild card in all this analysis is that the Law of Small Groups would kick in.
The 'Nine Scorpions in a Bottle,' as Holmes, I believe it was, called the justices, have to get along.
Every time there's a new justice, there's a new Court.
So it's hard to predict how the new one would interact the others and how they would influence one another, usually in subtle ways.
They deal with 8,000 petitions for review per year, but accept only 80 or so, lately.
The gradations become exceedingly subtle, making it very difficult to predict trends except so generally that it is almost useless for predicting individual and overall voting in specific cases.
That doesn't prevent attorneys arguing before the Court from trying, however. They pretty much guess whose votes they've got, whose they haven't, and who is up for grabs.
They try to tailor their arguments but are often surprised by the results.
I'm glad you're paying attention to the legal environment.
Engineering is nice, I'm sure, but lawyering!
Now there's an activity.