Outside the Beltway

Specter Suggests a Chief Justice: O’Connor

James Joyner · Monday, July 11, 2005 · 3 comments

Senate Judiciary Committee Chair Arlen Specter floats a rather bizarre selection to replace Chief Justice William Rehnquist if, as expected, he retires this week: Outgoing Associate Justice Sandra Day O’Connor.

Specter Suggests a Chief Justice: O’Connor (NYT | RSS)

Senator Arlen Specter, chairman of the Judiciary Committee, suggested on Sunday that President Bush could name Justice Sandra Day O’Connor, who is retiring from the Supreme Court, to the position of chief justice if it opens up.

“I think it would be very tempting if the president said to Justice O’Connor, ‘You could help the country now,’ ” Mr. Specter, Republican of Pennsylvania and a pivotal player in any confirmation hearings, said in an interview on the CBS program “Face the Nation.” “She has received so much adulation that a confirmation proceeding would be more like a coronation, and she might be willing to stay on for a year or so.”

Although Mr. Specter’s seeming endorsement of the idea was highly speculative – Justice O’Connor, 75, has announced her retirement, while Chief Justice William H. Rehnquist, 80, has not stepped down – it was the clearest of his several recent signals that he plans to steer his own course as he oversees hearings on a replacement for Justice O’Connor, independent of the president and of his party’s conservative base.

Many social conservatives have denounced Justice O’Connor’s votes on abortion, sodomy laws and public displays of religion. Hailing her resignation as a long-awaited chance to turn the court to the right, they have reminded Mr. Bush of his repeated praise for the court’s conservative anchor, Justice Antonin Scalia.

Instead, Mr. Specter, who said he was not making a recommendation to the president, echoed a chorus of Democrats who have lauded Justice O’Connor since her retirement. Speaking on the same program, Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, readily assented. “I think it would be a very doable thing,” he responded to the idea of enticing Justice O’Connor out of retirement to become the new chief.

Gary L. Bauer, president of American Values, a conservative organization, said Mr. Specter’s remarks “tell me that if Senator Specter were president, we would have quite different nominees than what we are likely to get from a self-described conservative president like the one we have.”

Of course, we already knew that. What we didn’t know before is that Specter seemingly has no sense of national political judgment at all. Why would Bush want to nominate someone to Chief Justice who is 1) already old enough to have retired from the Court and 2) that demonstrably does not share his vision for what a Justice, let alone a Chief Justice, should be?

Further, as Steven Taylor observes,

Even setting aside any issues of ideology or judicial philosophy, why in the world would any President in his right mind appoint a Chief Justice who would only serve a year or so? This is an opportunity for the President to lay down a multi-decade marker on history, and Specter thinks that he might appoint O̢۪Connor?

Quite right. The politics of the moment is that the president will not be able to appoint a Scalia-type Chief, unless perhaps he works out a deal to elevate Scalia himself and appoint relatively moderate justices to the other two slots. Still, the best confirmable conservative under 55 is the obvious route for Bush to take.