The Supreme Court is back in session, and according to the Chicago Sun-Times,
Rehnquist is so ailing that the court is trying to rule as quickly as possible on the issues before them, to avoid the problem of possible 4-4 ties before a new justice could be confirmed.
Assuming Rehnquist can't hang on for four more years, here are the most likely Bush picks for a replacement. The replacement could either be appointed directly as Chief Justice, or a current justice could be promoted to Chief Justice, making the new justice an associate justice.
The two most likely (probably equally likely) are
J. Harvie Wilkinson, III and
J. Michael Luttig.
Wilkinson, 60, was a 1984 Reagan appointee to the 4th Circuit, which is considered the most conservative federal appellate court.
According to the Richmond Times-Dispatch, Wilkinson wrote in a 2003 Virginia Law Review article:
"From the perspective of the humane conservative, sympathy and compassion are wholly appropriate emotions. They provide compelling reasons for action. At the same time, however, these sentiments must be disciplined by thoughtfulness and reflection. . . . To be compassionate without being intelligent about one's compassion is not humane either. Indeed, it is counterproductive - not thinking through consequences is dangerous because it often ends up hurting the very people one's compassion is intended to help."
Honestly, he seems like a decent guy. He's a proponent of federalism (as Rehnquist is), but to a similar degree that Rehnquist is, so things would be unlikely to change on that front, unless he experiences a big shift in views, which is not uncommon among judges once appointed to the Supreme Court.
Most significantly, Wilkinson upheld Clinton's "don't ask, don't tell" policy for gays in the military (citing his belief that the courts have no right to interfere in the executive branch's military policies), dissented when the 4th Circuit awarded Jerry Falwell emotional distress damages for a parody in Hustler, and opined in the Hamdi case that while courts do have the power to review status of "enemy combatants," they should mostly defer to the executive branch on national security issues.
Disturbingly, however, Milbarge writes in Begging the Question,
[Wilkinson] writes, "The critics protested the executive actions from a rights-based perspective, lamenting the absence of hearings, counsel, and other elements of criminal process. Their concerns are understandable, but they might be tempered by attention to basic principles of constitutional structure." He goes on to say, "The executive branch is thus on firmest ground when its claims of national security or executive privilege are anchored in the explicit structural mandates of Article II [such as the duty to act as commander-in-chief]." The Supreme Court, however, rejected the President's arguments in Hamdi and Rasul. Rehnquist, and presumably Wilkinson, would have approved the Executive decisions at issue in those cases, including placing detainees beyond the rule of law at Guantanamo.
Luttig, 50, on the other hand, clerked for Antonin Scalia (which is one strike against him), and is currently a 4th U.S. Circuit Court of Appeals judge. According to CNN.com,
Over the years, he has earned a reputation as a smart and bold conservative, a strong advocate of federalism, and a jurist assured of his convictions.
"He is a man who is not tortured by doubt over the correctness of his judicial philosophy," said Bruce Fein, a lawyer and constitutional scholar who was a deputy attorney general in the Reagan administration.
This bothers me, mostly because I wonder if he is "not tortured by doubt" the same way George W. Bush is "not tortured by doubt."
During his judicial career, he has struck down the Violence Against Women Act (saying Congress overstepped its bounds in enacting it), upheld a Virginia ban on partial birth abortion, and permitted Virginia to require parental notification for abortions. None of these are dealbreakers for me, but could be for some people.
Another potentially distressing fact: Luttig is a strong proponent of capital punishment, possibly spurred by the murder of his father during a carjacking. Says John H. Blume, a Cornell University School of Law professor in the Richmond Times-Dispatch:
"I think there is no question that he is the most conservative judge on the most conservative court of appeals in the country," said John H. Blume, a professor at the Cornell University School of Law who has represented condemned inmates before the 4th Circuit.
Blume also claims that Luttig has never voted in favor of a condemned inmate in a capital case.
Although a hard-line conservative, Luttig has not always voted the conservative viewpoint - in one case last year, Luttig dissented from the majority by concluding that in cases where a school district is alleged not to be providing an appropriate education to disabled children, the burden of proof should be on the school district to show that it is providing adequate services (as opposed to requiring parents to prove that the education being provided was insufficient).
My preference, of these two, is Wilkinson, largely because he seems to be more liberal, no matter how slightly.
Some other possibilities include:
John G. Roberts, Jr., 49, who has served on the Circuit Court of Appeals for the District of Columbia since Senate Democrats reluctantly confirmed him in 2003. He has clerked for Rehnquist and served in the Reagan Justice Department.
Called "Scalito", Samuel A. Alito, Jr., 54, was appointed to the 3rd Circuit Court by George H. W. Bush, and is loved by the current Bush administration for his conservative standpoint. Little more need be said, I think.
Larry D. Thompson, a close friend of Clarence Thomas, is the 59-year-old vice-president of PepsiCo, and served as the first deputy attorney general under Bush. He might be hard for Democrats to attack, even though he likely shares many of Thomas's crazy conservative views.
Michael W. McConnell, 49, of the 10th Circuit Court of Appeals is loved by legal academia, including liberals, but is a critic of Roe v. Wade, and even conservatives have concerns, as his views on many issues are unknown.
The go-to guy for conservatives with legal issues, Theodore B. Olson, 64, represented Bush in Bush v. Gore, who thanked him by making him solicitor general. Conservatives hail him as somewhat of a hero; liberals are still unhappy about his helping make Bush the President the last time around.
Emilio M. Garza, a 57-year-old Mexican-American, sits on the 5th Circuit Court of Appeals after being appointed by George H.W. Bush. Garza is a strong opponent of Roe v. Wade and considers it judicial legislation, desiring it overturned.
Janice Rogers Brown, 55, became the first black female to sit on the California Supreme Court, where she remains, as her judicial nomination has been blocked by Democratic filibuster. She is conservative to the point that she believes the Supreme Court decisions upholding the New Deal were a "disaster" and "marked the triumph of our socialist revolution."