We divert you from your regularly schedule hurricane-related kvetching

To bring to light something a bit more important...the Supreme Court.

Over the weekend, Chief Justice Rehnquist died. While I'm no great fan of the man, I don't have the same sort of near-joy that some people I've seen express. Of the "conservative wing" of the Court, he was the most decent. Unlike Scalia and Thomas, he actually seemed to hold a more traditionally conservative line. While I don't necessarily agree with that, he was consistant, and you could understand the reasoning behind his rulings. With Scalia (and to a lesser extent, Thomas) it has seemed that whatever suited his buddies in the corporate boardrooms was what he believed.

When Sandra Day O'Connor resigned earlier this summer and John Roberts was appointed to fill her spot, I was less than pleased. The man has a bit of a history as an ideologue when he worked in the Reagan Justice Department. However, in private practice he seemed to temper that with representing some more liberal clients. But his record on the DC Court of Appeals (to which he was appointed in 2003) has been such that it's hard to see him being anything like acceptable. After all, he upheld the sentencing of a 12-year old girl to juvenile detention for eating a couple of fries on a DC Metro platform; an offense that usually earns an adult a citation, if anything.

Now Bush has decided, less than two days after the Chief Justice has passed, to redirect Roberts's nomination from the associate justice slot to the Chief Justice opening. I predicted this just hours before it happened, and so I was not terribly shocked. I'd heard some grumblings about this possibility, and as much as I'd hoped they were wrong, I knew it was likely. Why?

A) Bush has seemed to be wanting to fill the seat before the new term begins in one month. Since Roberts was about to begin the confirmation process for associate justice, it would simply be a matter of changing that position that he was about to be confirmed for, but the hearings would be able to proceed as they'd been scheduled (only put off a few days while Rehnquist's funeral takes place this week). And with Justice O'Connor saying she would stay on until her replacement had been confirmed, it was more urgent to fill the Chief Justice slot.

B) To fill the CJ slot with someone else would have required vetting more candidates from the list that the president had prepared two months ago. Sure, one could argue that most of those candidates should have already been vetted before the last appointment, and the president could easily say that a thorough vetting was unnecessary. On the other hand, it would take time away from the president's renewed attempts to make it appear as if he is doing something about the flooding and other aftermath in New Orleans. As if the nation wouldn't understand his needing to attend to the Supreme Court vacancy. But it's all about the PR with Bush; and with last Friday's visit to the disaster zone having been a complete and total failure, he's asking for a do-over.

Why this bothers me is this; the CJ slot is not just another bench vacancy to be filled, and that's exactly how Bush is treating it. The Chief Justice is the head of the court. He presides over the sessions, which allows him to decide who gets to ask questions when, and for how long during arguments. This isn't to say that it would have been any better had Bush elevated Scalia. In fact, it could very well have been worse. But he's treating the seat as if it were just any other seat on that august bench.

Also, we're almost certain to have a justice on the bench who will be replaced mid-term. Any case that is argued prior to confirmation of a new justice, but has its decision released afterwards, means that O'Connor's vote in the decision is moot. This could lead to a number of 4-4 ties in which she would be the swing vote; and when a Supreme Court case is subject to a tie vote, the Chief Justice breaks the tie. Roberts would also be the youngest Chief Justice since John Marshall, who lead the court for 34 years.

And none of this takes into consideration his stances on the issues likely to come before the Court. It's simply a matter of looking at how the president's laziness can have a lasting impact on this country. I'd feel better about this is Scalia were the nominee, and I disagree with him far more than I do with Roberts (who I do disagree with on 9/10ths of the opinions and briefs I read, mind you).

It really bothers me that Bush is unwilling to give this most important judicial seat in our nation the due consideration it deserves. And it seems that he may be willing to provoke conflict with Senate Democrats along the lines of "but you had no problem with him replacing O'Connor", should they object, again equating an associate justice's seat with the Chief Justice's seat.

So, once again, this country is being put at the mercy of a lazy, detached, bungling chief executive. God save the United States of America.

[edit - 7 Sep 2005, 9:05 p.m.] - In the interests of full disclosure and maintaining factual accuracy, when I initially wrote this post, I was unsure about what would happen with a 4-4 tie on an issue before the Supreme Court. I looked for the information in a few different places, and I couldn't find it, so I just assumed that the CJ's side prevailed. I found out last night, when I finally got around to watching my recording of Meet the Press, that the lower court ruling prevails in that case. This makes me feel slightly better about the prospect of a 4-4 tie with Roberts at the helm. But that's not saying much. Pardon my error.