Published September 04, 2005
The Supreme Court (search) will likely enter its next session with less than a full bench.
The death of William H. Rehnquist (search) presents President Bush with both opportunities and burdens. The chance to make two appointments to the bench and name a chief justice is extraordinary, but Bush must make his choices carefully in order to avoid strong political resistance and fill out the court expeditiously.
"The whole dynamic on the court is going to be different as new justices come on board," said Joseph Hoffman, a former Rehnquist clerk and Indiana University law school professor. "We have been having a very stable period on the court for quite a few years now."
"It will serve the best interest of the nation to fill those vacancies promptly," Bush said in televised remarks from the White House, where flags were lowered to half-mast.
"I will choose in a timely manner a highly qualified nominee to succeed Chief Justice Rehnquist," Bush said. "As we look to the future of the Supreme Court, citizens of this nation can also look with pride and appreciation on the career of our late chief justice."
Rehnquist, 80, succumbed to thyroid cancer in his Arlington, Va., home Saturday night. He had been frail since announcing his condition last October, missed five months of the last court session and was briefly hospitalized twice this summer.
After the court closed out the 2004-2005 session in late June, media speculation that the chief justice would step down reached a frenzied pitch. But on July 15 Rehnquist scolded the press, saying in a statement: "I want to put to rest the speculation and unfounded rumors of my imminent retirement. ... I will continue to perform my duties as chief justice as long as my health permits."
In the end, Rehnquist scooped the press.
As Washington has lately been focused on sagging confidence in Iraq's democratization and an epic natural disaster along the Gulf Coast, Rehnquist's death came as a surprise.
"The chief justice battled thyroid cancer since being diagnosed last October and continued to perform his duties on the court until a precipitous decline in his health the last couple of days," court spokeswoman Kathy Arberg said late Saturday.
Bush has displayed an eagerness to remake the court since before he entered the White House. But Rehnquist's death comes at what is arguably the lowest point of Bush's presidency: A majority of Americans disapprove of his handling of the war in Iraq, the federal government's response to Hurricane Katrina was by most accounts excruciatingly slow and Bush's second-term domestic agenda has been all but abandoned.
Were Bush to appoint another staunch conservative suspected by liberals to be anti-abortion, he could expect a rousing fight from Democrats and women's groups.
But it is unclear what a protracted battle might accomplish, since Rehnquist was a consistent conservative who disagreed with the Roe v. Wade decision — he dissented as an associate justice in 1973. Most political observers agree that Bush's nominee will be at least as conservative as Rehnquist, certainly not more liberal.
And Bush, who once said he could not think of any mistakes he's made as president, is unlikely to cower in the face of political troubles.
"He's not up for re-election, and he's not a person who's afraid of battle," said Susan Low Bloch, a constitutional law professor at Georgetown University's law school. "I think he'll make the nomination without regard to what others might perceive as his weaknesses. I don't think he sees himself as weak and I don't think he cares."
David Yalof, who teaches at the University of Connecticut and wrote a book on how presidents select Supreme Court nominees, also expected Bush to go for broke with this second nomination.
"What history dictates is even relatively weak presidents have often gone for home runs with nominees," Yalof said, citing President Ronald Reagan's failed nomination of Robert Bork (search) amid the Iran-Contra scandal.
Rehnquist's death casts a huge question mark over Roberts' confirmation, which until now had been expected to roll smoothly through Congress.
Even if Roberts is confirmed within the next couple weeks, that will leave eight sitting justices on the bench without a chief justice come Oct. 3, the first day of the new session. Justice John Paul Stevens, who at 85 is the court's senior justice, will assume the chief's duties.
Having fewer than nine justices on the bench while possible successors are moved through the confirmation process is historically not unusual. But Stevens may want to hold off hearing and deciding the more high-profile cases on the docket, among them a parental consent for abortion case and an assisted suicide case.
In addition, Yalof told FOXNews.com, Stevens may also want to delay working on cases where a 4-4 vote is likely. In the event of a deadlock, the Supreme Court issues no decision and the lower court ruling stands.
It is also possible that the court will open next month with seven associate justices and one chief justice. Bush could choose to elevate a sitting justice — he has said his favorite justices are Antonin Scalia and Clarence Thomas — or he could tap Roberts for the top job.
While it might seem unusual to appoint the 50-year-old judge to the chief justice position without his ever having sat on that bench, it's been done before.
"It's historically not at all unusual for someone to come from outside the court and to be junior to many people already on the court to be nominated directly to be chief justice," Hoffman told FOXNews.com.
In fact, outsiders have more often been tapped for chief justice than associate justices.
Bloch, like many court observers, believes Bush saw Roberts as a good future pick for chief justice when he nominated him to replace O'Connor in July. She said tapping Roberts to replace Rehnquist instead would be a smart move because it might keep O'Connor on the bench until the second nominee is confirmed.
Moreover, there is nothing to suggest Roberts isn't qualified for the position.
"He's an extremely able Supreme Court advocate, he knows the court inside and out," she told FOXNews.com.
But changing Roberts' nomination midstream would be unprecedented, and could lengthen the confirmation process.
While the names floated when O'Connor announced she would retire are resurfacing, Bush could very well go with a qualified candidate who is also a trusted adviser and friend: Attorney General Alberto Gonzales.
"On the issues there is no reason to think Gonzales is less conservative than Rehnquist except perhaps on the issue of whether Roe should be overturned," Yalof said. "But that isn't to say Gonzales wouldn't vote to undermine Roe."
Advocacy groups have all but resorted to reading tea leaves in an effort to divine Roberts' position on Roe. Since the court has lost its swing vote in O'Connor, the replacement with Roberts almost certainly tips the court to the right. But replacing Rehnquist with Gonzales, whose abortion-related decisions and statements trouble social conservatives, could possibly reinstate the current balance.
Moreover, Roberts has referred to Roe as the "law of the land," and like conservative Justice Anthony Kennedy could uphold abortion-related rights even against the grain of his personal beliefs.
Where the addition of Gonzales is likely to have more significance is in cases weighing civil liberties against presidential power in the War on Terror.
"On issues involving the War on Terrorism, there is a lot of reason to believe Gonzales will be more conservative than Rehnquist. He is more likely to confer broad powers to the executive branch," Yalof said.
The same is probably true of Roberts, which could spell a new conservative bloc of justices who grant more special powers while picking away at terror defendants' rights.
Bloch agreed that the new court — the Rehnquist court remained static for a whopping 11 years — will likely make its presence known more often in War on Terror cases than abortion.
"Executive power, the War on Terrorism, national security vs. personal rights — that's going to be big in the next 10 to 20 years," she told FOXNews.com. "Conservatives tend to go with stronger presidential power, and my guess is there will be a tilt in that direction."