WASHINGTON – President Bush's (search) re-election makes it more likely Chief Justice William H. Rehnquist (search) will retire soon. And Republican gains in the Senate mean the president has more flexibility to nominate another strong conservative to fill that vacancy and other federal judgeships.
There has been no turnover at the Supreme Court (search) in more than a decade, but a shake-up appears imminent now that Rehnquist is seriously ill with cancer.
While sidestepping questions about whom he might nominate to the court, Bush vowed Thursday to name judges like those he picked in his first term — often young and always conservative.
"There's no vacancy for the Supreme Court, and I will deal with a vacancy when there is one," the president said at a news conference. "I told the people on the campaign trail that I'll pick somebody who knows the difference between personal opinion and the strict interpretation of the law."
All but one of the nine Supreme Court justices are over 65, and several have had health problems. Still, the only imminent departure expected is that of Rehnquist, who revealed this week that he is receiving chemotherapy and radiation for thyroid cancer.
The 80-year-old Nixon appointee is too sick to sit on the bench, and cancer experts said his treatment indicates he likely has the most serious form of the disease. Neither Rehnquist nor his doctors have revealed details about the extent of his illness.
Although retirements in the middle of a Supreme Court term are rare, Rehnquist's condition may force him to step down before Bush's second term begins in January. The president's re-election and GOP gains in the Senate — Republicans will hold a 55-seat majority — make it easier for Rehnquist to leave, said Douglas Kmiec, a Pepperdine University law professor and legal adviser in the Reagan and first Bush administrations.
"I think he welcomes the idea that he will be able to leave the court at a time when his own political party is in the White House and when the balance in the Senate is more likely to confirm a nominee closer to his own legacy," Kmiec said.
He said Rehnquist's family — the widower has three children — and other close friends such as his regular poker buddies will likely encourage him to think of himself.
"They will say he no longer has to be concerned about the political calculus," Kmiec said. "The people have resolved that for him."
Joseph Hoffman, an Indiana University law professor and former Rehnquist clerk, said the election result makes it easier for Bush to choose conservative ideologues, or to make surprise moderate picks.
"This time he has something more like a mandate than he did the first time. He won it fair and square," Hoffman said.
Bush has angered Senate Democrats with his conservative choices for appeals courts, leading to 10 blocked nominations. Twice Bush bypassed the Senate confirmation process by making short-term appointments when Congress was out of session.
Republican gains in Tuesday's election make it more difficult for Democrats to continue their opposition, even though they still have enough votes to support a filibuster. It takes 60 votes to stop that tactic.
"The Democrats will be saving their fire for the Supreme Court and may be a little less resistant to lower court judges than they were in the first term," said Craig Bradley, a Rehnquist clerk in the 1970s who also teaches law at Indiana University.
Bradley speculated that if Rehnquist leaves the court, Bush would try to fill the chief justice post with a young conservative, likely someone not serving on the high court now.
Others said he may consider promoting from within to name the first woman chief justice or black chief justice. Sandra Day O'Connor (search) is 74 and a moderate who would probably have an easy confirmation. Clarence Thomas, put on the court by Bush's father, is the youngest at age 56, but his nomination could spur a repeat of the acrimonious confirmation process he endured in 1991.
One hang-up for Bush may be Sen. Arlen Specter, a moderate Republican who is expected to chair the Senate Judiciary Committee next year. The Pennsylvania senator warned Bush Wednesday against nominating justices who would seek to overturn abortion rights or who are otherwise too conservative to win confirmation.
The Supreme Court has a delicate balance now on such issues as the death penalty and abortion. O'Connor, appointed to the court by President Reagan in 1981, supports abortion rights, as does liberal Justice John Paul Stevens (search), 84, another court member who could step down during the next Bush term. Stevens was appointed by President Ford in 1975.