IT CAN WAIT UNTIL JANUARY:

Life at the Court Proceeds, but With Sadness and Uncertainty (LINDA GREENHOUSE, 11/07/04, NY Times)

A Supreme Court with an absent and ailing chief justice is very different from a White House with an absent and ailing president. While the president embodies one entire branch of government, the chief justice merely heads another.

In the two weeks that Chief Justice William H. Rehnquist, 80. has been treated for a serious form of thyroid cancer, life at the court has proceeded without a sense of crisis. The judicial function is shared by eight other people, with Justice John Paul Stevens, the senior associate justice, presiding over courtroom sessions and the justices' private conferences. The administrative tasks are carried out, as they usually are under the chief justice's direction, by his administrative assistant, Sally M. Rider, a former federal prosecutor and State Department lawyer.

These arrangements can continue almost indefinitely. Nonetheless, as it has become evident that Chief Justice Rehnquist will not be returning soon, a sense of sadness and uncertainty has spread throughout the court and into the wider community of federal judges who have received no more information than the general public about the chief justice's condition and prospects. [...]

The timing of his illness, more than two months before the start of the 109th Congress, raises another prospect: that of a recess appointment to the court. The Constitution gives the president the power to make appointments to fill "vacancies that may happen during the recess of the Senate," although whether and under what circumstances this authority applies to judges is open to some debate.

A case recently appealed to the Supreme Court on which the court could act as early as Monday challenges the validity of President Bush's appointment of William H. Pryor to a federal appeals court during an 11-day Congressional recess last February.

A recess appointment expires at the end of the following session of Congress unless confirmed by the Senate in the interval - in late 2005 for any appointments made in the remaining weeks of 2004, or at the end of the second session of the new Congress, in late 2006, for appointments made after Jan. 1.

While there have been 12 recess appointments to the Supreme Court, 9 of them occurred in the early years of the country. The only 3 recess appointments in modern times, those of Chief Justice Earl Warren and Justices William J. Brennan Jr. and Potter Stewart, were all made by President Eisenhower in the 1950's.

Although the Senate subsequently confirmed those three justices, the experience left many senators uneasy.

This late in the year there seems no need for a recess appointment, even assuming the Chief were to retire.

Posted by Orrin Judd at November 6, 2004 07:33 PM