Chief Justice William H. Rehnquist‘s death Saturday night creates a second vacancy on the Supreme Court and raises the stakes in what will likely be an intense political battle over the Supreme Court’s future.
Over the next days and weeks, many Supreme Court commentators more knowledgeable than I will place Chief Justice Rehnquist’s judicial career in perspective (four good previous ones are here, here, here and here), so I will pass along the best of those commentaries. However, one thing is clear at this point: Chief Justice Rehnquist will be remembered — along with John Marshall and Earl Warren — as one of the Supreme Court’s three most influential Chief Justices.
Chief Justice Rehnquist’s death comes less than a month before his 81st birthday, only three months after the retirement of Justice Sandra Day O’Connor and just days before hearings on a former clerk of Justice Rehnquist, John Roberts, who President Bush nominated to replace Justice O’Connor. Judge Roberts confirmation hearing is currently scheduled to open Tuesday, but it likely will be delayed as a result of Justice Rehnquist’s death.

The Supreme Court will begin its fall term in under a month with senior Associate Justice, John Paul Stevens, in charge of the Chief Justice’s administrative duties. The Supreme Court can continue to function with just seven Justices because the law requires only a quorum of six for the Court to take official action. There is an outside chance that the nomination of Judge Roberts would be approved by October 3, the date on which the Court will begin hearing oral arguments in its fall term.
President Bush may elect to promote one of the existing Associate Justices to the Chief Justice position, but that still requires a new nomination and Senate approval (you can bet that takes Justice Clarence Thomas out of the running). Inasmuch as another lightning rod for political controversy — Justice Antonin Scalia — would be the only other Associate Justice that President Bush would consider promoting to the Chief Justice position, my sense is that the President will probably not select the new Chief Justice from the existing Associate Justices. Similarly, it is unlikely that the President would decide to change his nomination of Judge Roberts to be for the Chief Justice position because such a move would require an entirely new nomination of Judge Roberts (he was nominated to be an Associate Justice, not Chief Justice).
This post from earlier this year provides background information on several possible candidates to replace Chief Justice Rehnquist, and this more recent post includes information on several candidates who were considered in connection with the vacancy created by Justice O’Connor’s retirement. My speculation at the time that President Bush chose Judge Roberts to replace Justice O’Connor was that his selection of Judge Roberts signaled that the President would select a female candidate to replace Chief Justice Rehnquist, which could mean Fifth Circuit Judge and Clear Thinkers favorite, Houstonian Edith H. Jones.