Chief Justice O’Connor

by Jonathan H. Adler

I’m actually more sympathetic to David Boaz’s suggestion that Bush elevate O’Connor, and would enthusiastically endorse it if I thought Bush were guaranteed to name her eventual replacement as Chief as well. First, I don’t see it as a “reward” for her jurisprudence. It’s a pragmatic move that would potentially yield political benefits. Second, she’s already the swing justice in most cases, and the Chief’s role is often as a coalition builder. Whereas a CJ Thomas or Scalia would have to trim his sails to be an effective Chief — much as Rehnquist has done in many cases — O’Connor would not, as her sails are already trimmed. So, making her Chief doesn’t weaken the court’s conservative elements. Third, there’s always the chance — admittedly slim in the current political environment — that it would weaken opposition to the nomination of staunch originalist for the open associate spot. This is all moot in the end, however, as 1) I doubt O’Connor would take it, 2) If she did, she would probably feel obligated to stay on the court for more than two additional years casting doubt as to who would nominate her successor, and 3) I don’t think there’s any chance Bush will actually elevate her to Chief.

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