harrije

A good CJ can help forge majority consensus and strengthen some decisions. John Marshall was an exceptional CJ just for this reason. (The prelude leading up to Marbury v. Madison is brilliant politicking, all the more so because of the tricky conflict of interests and political stakes.) Marshall's court almost always passed down unanimous decisions, which helped forge an identity for the Constitutionally under-defined third branch.

In this regard, Rehnquist has been defective compared to his two predecessors. Reagan incorrectly assumed that he could steer the Court's ideological direction simply by naming an arch conservative as CJ. That didn't happen, though, because Rehnquist isn't a coalition-builder and his one vote doesn't carry any more weight than the most recently appointed Associate Justice's.

I would contend, though, that Souter was no mistake. GHWB knew he would likely have two Court appointments, and he also knew that with an opposition Senate, he wasn't going to be able to get two highly conservative nominations. His best strategy was to start off with a softball, then bring out the resin for the second pitch. On the current bench, Souter might be seen as a liberal, but compared to past Justices, he's pretty mainstream--even for Republican nominees. Cf. Justices Brennan, Burger, and Stevens. In terms of overall voting, Souter is actually in the moderate threesome on the current bench (along with Kennedy and O'Conner), though he tends to vote with the left a little more often than the other two moderates.

Reagan played the same game. He had trouble getting his strong ideological nominees past the Senate, so he picked more moderate Republicans Kennedy and O'Conner for the bench. Only when he had more Senatorial support did he gun for Scalia.

A Rehnquist vacancy would likely lead to a zero-sum nomination battle. Another Scalia could be nominated and it wouldn't change the shape of the Court at all. The Dems would be likely to let one nomination slip through their net, while saving their ammo for a more moderate or liberal retirement. (O'Conner has hinted that she may be ready to retire soon, and Stevens is starting to fossilize. He may be bound and determined to make the most of his life tenure, though, given the current political climate.)

My politics-watching instincts tell me that Thomas will not be elevated, at least not before the next Presidential elections. The Thomas nomination hearings rallied women voters against the first President Bush in a huge way and contributed to his defeat in 1992. If Bush goes for an arch-conservative nominee, he will likely concede with a more moderate elevation to CJ--likely Kennedy, but I wouldn't rule out Souter for the job. There would be a nice family synergy there, and it would be a pre-election grab for the moderate Republicans who may be a bit squeamish at the hard-right policies of this Administration.

There is also the possibility that the Senate Dems will fillibuster any SC nomination until after a new election cycle, just to spite the Court for its partisan decision in Bush v. Gore. The current federal judge fillibusters are a signal that they may be preparing to do just that -- and that is also likely a major reason the administration is whining so much about having two of its hundred or so nominations blocked. It's hoping the Dems will cave now and offer up no resistance later on when the really big nominations come into play.

The Constitution gives Congress the authority to establish the nature of the federal judiciary. Current federal law fixes the number of Justices at nine, but there have been and could be vacancies without affecting the ability of the rest of the Court to continue its job. In the event of an impasse, my guess is that the remaining eight justices would simply refuse to grant cert to cases where they would expect a close outcome.

Monkeybot

There's no place like home, no place like home...

Chuck

Long Dong Silver for clerk!

The idea of Bush appointing supreme court justices scares the bejeezus out of me. Goodbye civil liberties, hello compulsory prayer.