...by making a recess appointment in Rehnquist takes a turn for the worse soon. Some question whether he would be able to get away with it - especially if the election were to head to the high court once again.
The NYT weighs in:
The political ramifications of filling a vacancy on the court would depend in part on when it occurred. The picture could be tremendously complicated if a vacancy were to occur while it appeared that a contested election was heading once again for the Supreme Court.
But even if the election goes off without a hitch (oh, but to dream!), I can still see Bush paying back his fundies base by appointing a new justice durting the congressional recess. Why not? His friends will think he's hero. They are already making the argument that he is obligated to fill the position before the body is cold: (below the fold)
Todd F. Gaziano, director of the Center for Legal and Judicial Studies at the Heritage Foundation, a conservative research group, said that if President Bush lost the election on Tuesday but the result was contested in the courts, Mr. Bush would "have the responsibility to consider" making a recess appointment to fill a Supreme Court vacancy.
A 4-4 tie would let the lower court ruling stand (those damn liberal Florida Supremes), so Georgie can't have that.
And for whom, pray tell, would the new justice side with if the election were to go to the court AGAIN? Hmmm, I wonder...OKAY, I GIVE UP! WHO? Let's just say the ruling would end with "this case does NOT set precedent...". Because, of course, that is not what the Supreme Court does - in Presidential elections.
So, the new justice votes little Georgie into office. Then he/she would go through confirmation in late 2005. The Dems, of course, would be livid and it would be a VERY bloody fight.
But this is all far-fetched (or IS it?). What I'm really worried about is Bush appointing a new Supreme before the new congeressional session begins (Nov 13th? Does anyone know when it starts?). With Rehnquist not likely to survive much longer if his cancer has spread - it is likely it has - Bush will put his pick on the court. If he does this, the new judge sits on the court for a year. Then the congress would have to not confirm him/her for Kerry to hand pick his own, then Kerry's nominee would have to be confirmed - and that will be tough and long.
In addition, Kerry will have to appoint a new Chief Justice. I think he would pick O'Connor just to make his other pick sail through the confirmation a little easier. Plus, O'Connor has hinted at retiring, so she might not last the four years. Then he could put Breyer in that spot.
It would be much easier if Bush held off and and did the respectable thing. It ain't gonna happen that way, though.
So, be ready for the November surprise.