With the sad news of the death of Chief Justice Rehnquist, thoughts have already turned to his possible successor. (Update: See also Lyle Denniston’s speculation.) In conversations at the APSA meetings this past week (before the Chief’s death), I heard much speculation that upon the retirement of the Chief, President Bush would seek to elevate John Roberts to the Chief position.
Now that the Chief has passed away, I would not be at all surprised to see the White House resubmit Roberts’ nomination for the Chief position, with Justice O’Connor’s position filled later on.
First, if the President intended all along to move Roberts up, this would be the only straightforward way to do so. Second, the Court could function better with a vacancy in an associate position for the portion of the term before a second nominee could be confirmed than with an absent Chief. Third, Justice O’Connor could perhaps be persuaded to stay on for a few more months pending the appointment of her successor, given these new circumstances. Fourth, moving Roberts to the Chief position would give the President a chance to replace Justice O’Connor with another woman. Fifth, the relatively tepid opposition to Roberts now would make confirmation as Chief relatively easy.
The big question is one of timing. How would the Senate react to such a substitution? Would this request require a delay in the hearings? I imagine that much will turn on the views of Senator Specter.