Supreme Decision

This is a partial transcript of "The Big Story With John Gibson," Dec. 27, 2004, that has been edited for clarity.

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(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: ... and will to the best of my ability...

CHIEF JUSTICE WILLIAM REHNQUIST, UNITED STATES SUPREME COURT: ... preserve, protect and defend the Constitution of the United States.

(END VIDEO CLIP)

JOHN GIBSON, HOST: Chief Justice William Rehnquist (search) plans to swear in President Bush next month at that inauguration just like he did four years ago. But his health is raising questions about his future on the bench. Rehnquist working from home since October when he began treatment for thyroid cancer. When will he be back on the bench? And what will happen if he decides to retire?

I'm joined now by attorney Tom Goldstein.

So, Tom, you know, I'm a little surprised Rehnquist is going to stand out in the cold. He hasn't even been well enough to go back to his office. I think he participated in a recent court decision from home.

TOM GOLDSTEIN, ATTORNEY: It's astonishing.

GIBSON: So do you really expect him to show up there, stand in the cold and swear in George Bush?

GOLDSTEIN: Yes. They went to the trouble of making an announcement that he was going to be there rain or shine, and so I would be surprised if he went back on it. It was a stunner when he said he was going to do that, given that he has been recuperating at home. But it just shows he really does believe that he's going to participate in every aspect of his job, however he can.

GIBSON: OK. Now what about the sort of short- to medium-term future of Rehnquist considering his age and his illness and the treatment and the recuperation and so forth? I know he wants to sit on the bench until he surpasses the longevity of some of his Supreme Court (search) heroes. Do most people think he can do that?

GOLDSTEIN: Well, there's a lot we don't know. What we know is that he has, as you said, thyroid cancer, that he's gotten radiation therapy, chemotherapy (search), that almost everything he's done he's done at home including listening to the tapes of the argument or looking at transcripts of it, reading briefs and voting in cases.

We don't know how serious his condition is. There are two thing that give us the sense that he's getting better.

First, you pointed out he's going to be at the inauguration, a really public thing, outside, could involve a lot of bad weather, and he's participating in more cases. In November, he took some cases off.

But they've now said that in December he's going to be involved in all of the cases. So you get the sense that he's getting stronger, not getting weaker, and so, yes, he could hold on for a long time and keep participating.

GIBSON: How big a deal is it to contemplate replacing the chief justice?

GOLDSTEIN: Well, it could be enormous if the court is going to go in a different direction. If you had a really liberal chief justice that was going to be replaced by a conservative or the other way around, then it could be titanic because, in so many of the cases, the justices are 5-4, particularly on really hot-button issues like affirmative action, for example.

But this time, it's probably not going to be as big a deal. It's going to be more like changing lanes than a U-turn because we have a very conservative chief justice. The person who's probably most responsible is the judge for conservative legal thought in the country, who's going to be replaced by someone picked by a very conservative president backed by a 55-member majority in the Senate.

So what's likely to happen here is that what Chief Justice Rehnquist gave us all the way since he came to the Supreme Court in the 1970s to now is going to continue for another 20 or 30 years. Whenever he does retire, he'll probably be replaced by somebody who thinks a lot of the same things he is.

GIBSON: OK. Let me just remind people of who he is and why we care. How has he affected Americans' lives as a conservative chief justice of the Supreme Court?

GOLDSTEIN: Well, he is the one starting in the 1970s that really defined conservative legal thought with perhaps less government, sort of a less expansive reading of the Bill of Rights, a more favorable impression of the rights of the states and the powers of the states versus the powers of the federal government.

And since the 1970s, more and more people have been appointed to the Supreme Court who agree with him, and now he has a majority of about five justices, and you've got to have that five to make a majority on the Supreme Court of nine. And so he's been the leader of that movement.

And the question now is will he hand off the baton to another generation of justices.

GIBSON: Do you think a conservative majority Supreme Court — I mean, we have one now, essentially — but a reinforced, younger, more vital, chief justice and a conservative block well entrenched on the Supreme Court, would that court overturn Roe v. Wade?

GOLDSTEIN: Yes. If we had, for example, five people who believe as Chief Justice Rehnquist does or Justice Scalia or Justice Thomas — if, for example, Sandra Day O'Connor, who's sort of the more moderate conservative member at the center of the court who's in her 70s, if she were to leave the court and be replaced, well, then you could see Roe v. Wade overturned. We're still several justices away from that happening, but absolutely.

GIBSON: And let's contemplate the process of picking a replacement for Rehnquist. The Democrats have filibustered George Bush's choices for the appellate courts and the circuit court benches. Do they dare pull that trick out in public for all the world to see over a chief justice of the Supreme Court?

GOLDSTEIN: Well, it's true that there are a number of appellate nominees who are being held up on a filibuster by the Democrats, and you're absolutely right that there's much less public attention on those appeals court nominations than on the Supreme Court, and it would be very, very unusual for us to have eight members on the Supreme Court because the Senate wouldn't confirm a ninth one.

It would depend a lot on who the president sent up there, I think. If there was somebody who had a track record that the Democrats could really sort of sink their teeth into and say this person is outside of the mainstream and conservativism, then there is a chance. I think that there's a lot of posturing going on, on both sides right now.

The president has been very, very committed to judicial nominees. The Democrats have really stood up and said, look, we are going to hold the line at the most extreme nominees, and so I think you're right to predict that there is a big, big fight coming.

GIBSON: Tom Goldstein looking at the Supreme Court.

Tom, thanks a lot. Appreciate it.

GOLDSTEIN: Thanks so much, John.

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