In just under one month, the Supreme Court is scheduled to convene facing the distinct possibility of having to hear and decide cases with only seven Justices. The death of Chief Justice William H. Rehnquist and the yet-unfilled Sandra Day O'Connor vacancy will require the court to proceed -- possibly for several months -- with some uncertainty, but proceed the court must and will.
The law requires a quorum of only six justices for the court to take official action and makes no provision for the appointment of an "acting" Chief Justice. Under the rules of the court, the most senior Associate Justice, John Paul Stevens, would preside over the court, but would not take any significant independent action without consulting the other six justices.
The Supreme Court is scheduled to convene its fall session on Monday, Sept. 26, when it will begin its conference to consider whether or not to hear new cases appealed during the summer recess. Oral arguments on already scheduled cases are set to begin on Oct. 3, at which time Judge John Roberts, Jr. may or may not have been confirmed by the Senate as the replacement Associate Justice for the retired Sandra Day O'Connor.
Since the filling of two vacancies, rather than one, will certainly have a profound affect on the future direction of the Court, the replacement process is likely to become even more politically sensitive, and thus take much longer to complete.
President Bush could appoint a temporary replacement for Rehnquist by making a "recess appointment" during a time when the Senate is not in session. Bush recently used a recess appointment to install John Bolton as U.S. ambassador to the United Nations. It is not considered likely that President Bush will choose to make a recess appointment to the Supreme Court, since the appointee could serve only until January of 2007, the end of the current Congress.
