by TChris

As a matter of priority, the death of the Chief Justice is dwarfed by the urgent need to help the victims of Hurricane Katrina. Come Tuesday, senators should table all other action in favor of managing a crisis that seems beyond the competence of Homeland Security. The confirmation hearing of John Roberts should await a less pressing time, and neither the president nor the Senate should consider Rehnquist’s replacement until the public health crisis confronting the gulf coast has been resolved.

Some will argue that Rehnquist’s death requires the immediate confirmation of Judge Roberts. Not so. Only six justices are needed for a quorum. The seven sitting justices are capable of carrying on the Court’s business. They may decide not to decide cases until an eighth or ninth vote is available, a procedure the Court’s rules would permit. In some cases, the seven may have the five votes that would arguably render an eighth or ninth vote superfluous. While the Court benefits from the collegial debate that a full Court can provide, the sitting justices are capable of deciding which cases would benefit and which would likely be unaffected by an additional vote or two.