U.S. Supreme Court -- Curiouser and Curiouser

In light of recent events, it's good to see the President treating Labor Day as a working day.* Breaking news reports this morning indicate that the nomination of John Roberts is being shifted from Associate Justice (replacing Sandra Day O'Connor) to Chief Justice (replacing the late William Rehnquist).

It's an interesting move, though I think it's driven largely by short-term thinking:

1. "Let's get nine justices on the bench this October" -- O'Connor's resignation is only effective once her replacement is confirmed. Without a full bench, the Supreme Court would likely duck its more controversial cases (for fear of ending in a 4-4 deadlock). Assisted suicide (among other issues) is on the fall docket -- and a showdown between the "states rights" advocates and the "culture of life" bandwagon requires an odd number of justices.

2. "Let's limit the public attention on the judiciary by holding only two hearings" -- the elevation of a sitting Associate Justice to Chief Justice would require a separate confirmation hearing, followed by new hearings for the nominee to fill the Associate seat. Scalia and Thomas were most often mentioned for elevation, but neither really seems to carry the right tone to hold that slot. Also, elevating either would be a shot-in-the-arm for the Democrats' fundraising efforts heading into mid-term elections next fall. (We also miss out on the sheer entertainment value of Scalia defending his duck-hunting trip with Dick Cheney on national television.)

Another factor, of course, is the opportunity to set a new tone in the second nomination. The administration has tried to establish Roberts as a "moderate pragmatist" supposedly upholding O'Connor's judicial ideals. If that sells, then W can feel free to swing well to the right to fill Rehnquist's ideological slot. We can certainly argue about whether Roberts is truly a moderate pragmatist (or anywhere to the left of Rehnquist), but it's a virtual lock that the next nominee will be to the right of Roberts.