Wednesday, November 03, 2004

Supreme Court retirements

David Bernstein ascribes Rehnquist's failure to retire at some point in the last four years to the "will to power":
He could have resigned in 2003, and virtually guaranteed that he would be replaced with a Bush appointee. Instead, he could not pry himself loose from the power and prestige of his office, and instead chose to hang on into his 80th year. For putting his own love of the Chief Justiceship above the cause of ensuring that a (reasonably) like-minded individual replace him, Rehnquist deserves the contempt of all Federalists in good standing. (I know it's tough to give up power, but can we all take a lesson from George Washington in that regard?)
I vote for the theory -- which I saw somewhere else but can't remember where at the moment -- that the 5 Justices who decided the outcome in Bush v. Gore also decided not to retire during that Bush term. They thought that it would appear too unseemly to retire after having made the decision that helped Bush gain office. (The counting in Florida would likely have reached the same outcome anyway, but the decision was made at a time when that was unknown.)

Otherwise, the failure of Rehnquist and O'Connor to retire in the past 4 years is totally inexplicable. Yes, the "will to power" might play a role. But both Rehnquist and O'Connor are getting very old, and they both are doubtlessly well aware that (1) they would like to be replaced by a Republican and (2) Bush could easily have lost reelection. A choice in favor of personal honor is what best explains why they didn't retire last year.


Anonymous Anonymous said...

It might have been a bright-line decision that "we must not retire for four years," or it could have been a step-by-step process that got to the same point. Concerns re Bush v. Gore may have led them not to retire in summer 01, so soon after. But they may have, as of summer 01, been open to retiring un summer 02 or 03 (not 04, as they usually try to avoid presidential election years.)

But then other things intervened.

It may have been a desire to keep the Court whole in the post-9/11 cases, so that a new nominee would not be grilled about habeas and enemy combatants and whatever.

It may also have been Senate politics. Recall that the Jefford switch gave the Dems control for rest of 01-02. Then, under both the Dem-control period and after the GOP re-take, we saw the filibusters of circuit-court nominees. That may have led them to see whether 2004 would lead to a more solid GOP Senate -- and now that has happened.

So it may not have been a 4-year decision made up front, but just a 2001 decision that segued into these other things.

Now, I think Bush's dream would be to appoint O'Connor as Chief, if he could get a secret promise that she'd do a year or two, so he could then go with Thomas. He could then give the Chief-ship to moderates now, to be conciliatory, and build up to go right down the road. He could also make history with the first woman CJ AND the first black CJ. But I don't think SDO would or should promise that, and gambling that she pushes 5 years to a Hillary term is not a risk to take.

12:54 PM  
Anonymous Anonymous said...

I think that you are missing a little bit of the Rehnquist way of thinking. If you read his book, Rehnquist has a great affinity for the history of the Court itself. As it currently stands, he is less than 2 years away from being the longest serving justice in Supreme Court history. I think that beyond power, this is truly what he strives for. Also, Rehnquist re-dedicated himself to the business of the Court after his wife died and this is truly what he lives for.

9:52 AM  
Blogger Aaron said...

Here's a wacky idea - maybe Rehnquist didn't retire because he likes his job, enjoys his work, and feels that he is good at what he does. Perhaps he isn't a slave to people who think he should "time" his retirement for their benefit, rather than continuing to do a job he believes himself to be very good at.

10:34 AM  

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