Novak is reporting that Rehnquist will step down tomorrow morning, creating a two seat vacuum on the Court. That, as it happens, is the subject of a provocative article penned by Loyola Law professor Richard Hasen in today's TNR. Hasen argues that a double-retirement is the best liberals can hope for. Currently, Bush will have to replace O'Connor with, more likely than not, a non-Gonzales conservative* -- he owes the Christian Right too much. Democrats, then, would likely have to filibuster the nut he comes up with**. Nuclear option hits and who knows what happens, save unheard of partisan bitterness.
A double-retirement is different, though. Gonzales goes up, but so does Luttig or McConnell. Indeed, I'll go one step farther and say Bush'll move Scalia to Chief Justice in addition to nominating a hardliner in order to quiet opposition to Gonzales. Democrats, feeling safe that the Court won't change, don't filibuster. Conservatives, getting Scalia and a favored son, don't shriek. Balance returns to the force.
Assuming Gonzales is the squishy con the right seems to believe, that's not a bad outcome. In effect, the Court remains unchanged. Under a president with the ideology and indebtedness of Bush, that's the best Democrats can hope for. Indeed, I'd actually like to see Scalia become Chief Justice. As one of nine, his nuttiness is largely filed away in the oddball category. Elevate him to head of the Court and his utterances and musings enter scrutiny, and when a hard conservative is saying things like "[m]ere factual innocence is no reason not to carry out a death sentence properly reached", that can only be good for Democrats.
