Not sure if this has happened previously, but I would expect the justices would decide amongst themselves who would take on the functions of the CJ until such time as one of them was nominated and confirmed. The Court would not allow itself to become paralyzed.
The most senior associate justice is Acting Chief Justice when there is no Chief or the Chief is indisposed (as is now the case). Currrently that’s Justice Stevens.
–Cliffy
I bet O’Connor will retire. Not that she wouldn’t take the top job but if she does I bet she would still retire before Bush left office. Lets not forget her comment on Election Night 2000. If I were Bush that would be the route I would take and try to get Gonzales to replace her both times. If I were the Dems I would let Bush bump Scalia up if he wanted to and concentrate on keeping his current seat from being filled by another ultraconservative.
Having said that I don’t think Bush will want to promote an Associate Justice. Instead I expect him to nominate a young, health, minority ultraconservative. Perhaps one he has already gotten confirmed into a district court seat since the Dems have been able to block the most reactionary of his Circuit Court nominees.
I wouldn’t mind being wrong though.