Possible Supreme Court vacancy spurs speculation
October 26, 2004
WASHINGTON – Chief Justice William H. Rehnquist’s 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 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 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.
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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.
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.