Deep Breaths

It's fair to say that the passing of Chief Justice William Rehnquist (coverage from NYT, WaPo, LAT) comes at a crucial moment in American political history. Not only are Americans watching the ongoing aftermath of the worst natural disaster (and perhaps the worst disaster of any kind) in our nation's history, and the continuing violence in Iraq, but we were also preparing to observe Supreme Court confirmation hearings for John Roberts beginning on Tuesday.

Whether those hearings will occur as scheduled is, as of this morning, unknown (although some delay is probable, I'd suggest). Just what steps the president will take in the coming days and weeks to deal with this situation - even as his Administration struggles to overcome much-deserved criticism for the response to Katrina - are just as unknown. It may be days before either of those questions are answered.

One thing is abundantly clear: there will be no period of mourning for Chief Justice Rehnquist, in which political considerations are set aside in remembrance of a fine public servant who spent his life in the service of his country. While I did not agree with many of his decisions, I greatly respected the man for his honorable service and his love for the institution he led.

I say that fact is clear, and it is. Had Katrina not occurred, we'd all be watching wall-to-wall cable B-roll of the Chief Justice's life and career, and interviews with former clerks, colleagues, and friends for days on end. But the horror that is Katrina eclipses all of that, and the media will - rightly so - continue to cover that ongoing tragedy for the forseeable future. In the background, however, away from the cameras (for better or worse I'm not sure), serious discussions concerning the Court are already occurring. The timing just does not allow anyone - those "in the know" or the rest of us - to pretend that political considerations can be set aside right now.

The calculus here is remarkably difficult. I don't think I'm exaggerating much in saying that how the president handles this multi-front political situation will determine history's view of his second term, as well as his continued relevance in any meaningful form to setting the agenda for the remainder of his presidency.

I would venture to guess that it would be nearly impossible to have two confirmation processes completed prior to the start of the Court's term on the first Monday of October. The president could transfer John Roberts' nomination from associate justice to chief justice and ask Justice O'Connor to remain on the Court for all or part of this coming term (her resignation back in June becomes effective on the confirmation of her successor). He could also leave Roberts' nomination as is and nominate O'Connor to be chief justice. Whether O'Connor would be amenable to either of those options I have no idea, but it seems to me that one of those would be the smartest way for Bush to deal with this.

That said, I doubt very much that the Bush Administration will do that, since wise political moves have hardly been their forte of late. Just what will happen, we'll all have to wait and see together.