Rehnquist Dodges the Press

Posted on July 9, 2005

All the buzz yesterday was that Rehnquist was going to announce his retirement from the Supreme Court. But he didn't do it. Now there are some reports that he was going to retire yesterday, but held off with the announcement because of the London bombings. If Rehnquist does retire soon, it will set the stage for Bill Frist's greatest challenge yet as Senate Minority Leader. He will preside over three confirmation hearings: two for Supreme Court Justice appointments and one for whomever is nominated to be Chief Justice. Even if he (and it's going to be a "he," believe me) is a sitting Supreme Court justice, he still has to be separately confirmed as Chief Justice.

So, it could play out like this: Rehnquist retires. Bush proposes Alberto Gonzales and one extremely conservative justice. He also proposes Antonin Scalia as Chief Justice. Sandra Day O'Connor was by far the better choice for Chief Justice than the prickly Scalia. But O'Connor is gone and Scalia has been campaigning hard for the job by engaging in what is for him unusual behavior. He's been jovial, he goes to cocktail parties, he's been networking like mad. Rumor has it that Bush is considering Clarence "I Don't Believe in Stare Decisis¹" Thomas as Chief Justice, but does anyone really want to through yet another Clarence Thomas confirmation hearing? Wasn't once enough? Anita Hill is alive and kicking, after all.

The majority of sitting senators have never even been through a confirmation process for a Supreme Court Judge. Frist was recently humiliated by the defecting moderates who went behind his back to forge a deal to stop him from exercising the nuclear option. Can he keep his house in order in what will be the most contentious confirmation hearings since the Thomas hearings? We'll find out soon.

¹ Stare Decisis is a Latin phrase meaning "to stand by decided matters." As a practical matter, it means that lower courts are bound by higher courts' rulings and that the Supreme Court generally follows its own prior rulings. So, if you don't believe in Stare Decisis, you don't have to follow any of the prior rulings of the Supreme Court, e.g., Roe vs. Wade, Brown vs. The Board of Education, the Miranda case etc. Our entire system of jurisprudence is based on this concept. But hey, why be bound by what went before? Why not overturn the New Deal and that pesky, expensive Social Security?