WASHINGTON – Chief Justice William H. Rehnquist's (search) hospitalization for cancer brings with it the prospect of the first Supreme Court vacancy in a decade and is prompting speculation about who might take his place.
Rehnquist has been the court's conservative anchor for a generation. Even before his thyroid cancer diagnosis, most believed the 80-year-old would step down in the next presidential term.
The illness could speed that up, possibly even before the end of the Supreme Court's (search) current term next summer. If Rehnquist retires, whoever wins the presidential election would pick the next leader of the court.
"Since it's the chief justice who's ill, it suggests that conservatives have more to lose than liberals," said Douglas Kmiec, a Pepperdine University (search) law professor and legal adviser for the Reagan and first Bush administrations.
The Supreme Court had no more information Tuesday on Rehnquist's cancer, which was announced Monday in a brief statement. The type of cancer, how advanced it is and Rehnquist's prognosis have not been disclosed, though the statement said the chief justice is expected on the bench when the court returns Monday.
The court said Rehnquist underwent a tracheotomy over the weekend at a hospital outside Washington as part of his cancer treatment. Dr. Yosef Krespi, chairman of otolaryngology at St. Luke's-Roosevelt Hospital in New York, said only aggressive or complicated thyroid cancers require a tracheotomy.
The court is weighted with more conservatives than liberals — but barely. Many of the closest cases, like the 2000 Bush v. Gore decision that gave Bush the presidency, are decided on 5-4 votes.
If Bush wins, and Republicans keep their narrow control of the Senate, a Rehnquist retirement would give Bush the opportunity to promote a sitting justice to chief justice, and put a new face on the court.
Three of the court's conservative members would be good prospects: Sandra Day O'Connor, Clarence Thomas and Anthony M. Kennedy. While Thomas would be Bush's preferred candidate, the confirmation likely would be at least as brutal as in 1991 when Thomas was nominated by Bush's father and barely survived accusations of sexual harassment.
Justice Antonin Scalia, meanwhile, is so polarizing that even admirers say it would be difficult for him to win confirmation as chief justice.
O'Connor and Kennedy are both moderates who would have easy confirmations but they could be opposed by Bush's conservative base because of their records on abortion and other issues. If Bush taps one of them for the top spot, he would have some leeway to name a very conservative justice, like J. Michael Luttig, a former Scalia clerk who serves on the 4th U.S. Circuit Court of Appeals in Richmond, Va., or Samuel A. Alito, who is on the 3rd U.S. Circuit Court of Appeals in Philadelphia.
The double ticket could divide the attention of possible foes, who might have a tougher time focusing on two records at once.
Moderate judges have been mentioned as likely justices in a John Kerry administration, like Merrick Garland, as well as some with strong civil rights credentials, including David Tatel. Garland and Tatel are appeals court judges in Washington.
Both sides have candidates for the first Hispanic Supreme Court justice. For Kerry, the possibilities are appeals court judges Jose A. Cabranes and Sonia Sotomayor. Bush prospects include White House counsel Alberto Gonzales and Washington lawyer Miguel Estrada, whose earlier nomination to an appeals court was blocked by Senate Democrats.
Former politicians are also attractive choices, said Jamin Raskin, a liberal law professor at American University, as well as young judges who could serve for 40 years or more on the court.
Rehnquist has been on the Supreme Court since 1972.
Kmiec said even if Bush loses the election, he could replace Rehnquist before Kerry's Jan. 20 inauguration, at least on a temporary basis. The president has used "recess appointments," made while Congress is out of session, to get around Senate opposition to some of his judicial selections and other agency choices.
Bush has used recess appointments to name two appeals court judges whose nominations had been blocked by Senate Democrats: Charles Pickering of Mississippi, a former chairman of the Mississippi Republican party and father of Rep. Chip Pickering, R-Miss., and William Pryor, the former attorney general of Alabama.
Such an appointment to the high court would last until January 2006.
In 1953, President Dwight Eisenhower used a recess appointment to name Earl Warren — then governor of California — to be chief justice. But Eisenhower had not just lost an election, and the Senate confirmed the choice the following year.
David Frederick, a Washington attorney who specializes in the Supreme Court, said, "The biggest institutional concern would be with the 5-4 decisions and the perceived legitimacy of those."
Several appeals are pending at the Supreme Court that challenge Bush's use of recess appointments to put people on appeals courts. Critics of Bush's temporary appointments contend the president can only use them at the end of a Congress or during the recess between annual sessions, not during short breaks.
The White House declined to weigh in.
"There are no vacancies on the court and we're not going to speculate," said White House spokeswoman Erin Healy.