June 11, 2003|By Gail Gibson | Gail Gibson,SUN STAFF
As the Supreme Court wraps up its work for the term this month, issuing highly anticipated opinions on topics ranging from affirmative action to the death penalty, one decision is likely to be more closely watched than any other: Which, if any, of the court's nine justices will announce retirement plans?
Court observers say that if there are departures this summer, the most likely to retire would be Chief Justice William H. Rehnquist, 78, who is in his 31st year on the court, his 17th as chief justice. Two associate justices - Sandra Day O'Connor, 73, and John Paul Stevens, 83, the court's oldest member - are considered possible candidates to leave.
A Rehnquist retirement would set the stage for possibly two confirmation battles, one for the chief's post and another for a new associate justice if President Bush were to appoint a sitting justice as chief. But Rehnquist, a solid and predictable conservative vote, likely would be replaced by an equally conservative nominee, meaning relatively little change in the court's philosophical makeup.
The court could see the greatest shift if O'Connor opts to retire. The most moderate member of the court's conservative majority, O'Connor often provides the deciding vote in the court's many 5-4 rulings. Her vote is viewed as critical for upholding abortion rights, and in recent years she has expressed concerns about the fairness of the death penalty.
"O'Connor going would be the major, major issue because she has been such a key swing vote," said University of Maryland law professor I. Michael Greenberger, a Justice Department official during the Clinton administration.
Sheldon Goldman, a political science professor at the University of Massachusetts, Amherst agreed, calling an O'Connor departure a "major change that would put, in all likelihood, Roe vs. Wade in some jeopardy." The court's 1973 ruling in the case established a constitutional right to abortion.
The guessing game
The question of possible vacancies has become a perennial guessing game as the lineup on the nation's high court has remained unchanged for nine years, the longest stretch in more than a century.
This spring, however, the question has gained new urgency. Speculation that at least one of the justices might step down has been heightened by the approaching 2004 presidential campaign and extensive research of potential nominees already under way by Democrats and various interest groups.
"There's been a long period without a nomination. That means a lot of people are getting antsy," said Michael J. Gerhardt, a professor at the College of William & Mary Law School in Virginia.
The justices themselves offer virtually no clues to their plans. Rehnquist touched off a flurry of speculation in December when he paid a visit to the White House a month after undergoing knee surgery that kept him off the bench for several weeks. The chief justice stuck a pin in the rumor bubble, saying the purpose of the visit was to lobby the president on the issue of pay increases for federal judges.
"No one knows if a justice is going to retire, and anyone who claims they know is either deluded or lying," said James L. Swanson, who tracks the court as a constitutional law fellow with the Cato Institute, a libertarian research group in Washington. "Only the justices know their own minds; it's very much like watching the Kremlin during the Cold War."
A bruising battle
Still, legal scholars say there is good reason to expect at least one retirement by summer, clearing the way for what could become a highly partisan nomination fight. Interest groups on the left and right have been preparing for more than two years to vet potential nominees, essentially since Bush's election in 2000. The extended period for opposition research all but ensures a bruising battle reminiscent of the failed nomination of conservative Robert H. Bork in 1987 or the confirmation of Clarence Thomas in 1991.
"I think we're going to be looking at a real donnybrook," said David N. Atkinson, a law and political science professor at the University of Missouri, Kansas City and author of the book Leaving the Bench: Supreme Court Justices at the End.
Atkinson said the political calendar argues for at least one retirement this spring. Both Rehnquist and O'Connor were appointed by Republicans - Rehnquist was President Richard M. Nixon's last nominee, in 1972; O'Connor was appointed by President Ronald Reagan in 1981 - and justices typically try to time their retirements so that a president of the same party can appoint their successors.
At the same time, most observers say that, barring a medical or personal emergency, none of the justices would retire in a presidential campaign year.
