A Stitch in Haste

Well I'm very late to the party regarding Justice O'Connor's announced intention to resign (which not the same as "her resignation" — more on that below).

As I like to say, I'm a political blogger, not a politics blogger, so much of this may be of little value. But here are some hasty stitches:

--I think people are very much underestimating the pressure to nominate a woman, Justice Ginsburg notwithstanding. For right or for wrong there had long been an unofficial "Jewish seat" on the Court and now of course there's a "black seat." I'm not saying it will happen, I'm just saying the pressure will be there. It will be interesting to see what role, if any, the four female Republican Senators, none of whom tend to be ultra-conservative, play in this (keep an eye especially on the increasingly important Kay Bailey Hutchison of Texas).

--Which of course raises the question of Judge Janice Rogers Brown. On the one hand, she was just confirmed to a Circuit Court position. On the other hand, she was just confirmed to a Circuit Court position. What I of course mean by that is that, while she was clearly confirmable (thanks to the Gang of Fourteen), others might charge that she is being elevated too quickly. On the other other hand, she was a state supreme court justice (California), so she does have appellate experience. (Compare: David Souter was nominated from a state supreme court to the Circuit Court, and served only five months before being elevated to the Supreme Court.)

--I wonder whether this turn of events changes the calculus of a potential Chief Justice Thomas. My longstanding thesis has been that, had Chief Justice Rehnquist retired first, then President Bush would look outside the Court for a replacement, since to elevate Thomas would simply mean two confirmation hearings to fill one vacancy. But with Justice O'Connor leaving first, perhaps some sort of back-room compromise can be struck where Bush nominates a moderate to replace both O'Connor and then Thomas' vacancy in exchange for allowing Thomas to quietly step up to Chief Justice. Might be too convoluted, but stranger things have happened.

--His indefensible McCreary dissent forever rules out Scalia for Chief Justice. Just thought I'd throw that in there.

--Someone suggested, I forget where, that O'Connor's resignation letter is actually unconstitutional because it strips the President of his power to make a recess appointment (the letter states that she will not resign until her replacement is confirmed by the Senate). I know we libertarians sometimes try to find unconstitutionality under every rock and behind every political maneuver, but as far as I can tell, it's her party and she can "bye" when she wants to.