Forces poised over court

Rehnquist may retire, but vacancy is not assured

Campaign ads are gearing up

Bruising fight expected over Supreme Court seat

June 26, 2005|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

The first ad is already on the airwaves, featuring an image of the Supreme Court building's marble columns, a group photo of the current justices and an announcer's booming warning: "Democrats will attack anyone the president nominates."

Part of one conservative group's $700,000 "Get Ready" campaign, the ad is just a hint of the fury that will follow if, as widely anticipated, the close of the Supreme Court's current term is capped by a retirement announcement from one of the justices - possibly as early as tomorrow.

Already, battle lines are forming over what would be the first opening on the nation's highest court in 11 years and what is expected to be the most bruising fight over a Supreme Court nominee since the bitter confirmation hearings for Clarence Thomas in 1991 or Robert Bork in 1987.

Senate Democrats sent a letter to President Bush last week urging him to consult with them on any nominees to the Supreme Court to avoid the kind of confrontation that marred some of his choices for lower courts. Advocacy groups on the left and right are primed with phone banks, e-mails, research on potential nominees and plenty of cash.

"We have to effectively use all these various tools to make sure we get our message out," said Brian McCabe, president of Progress for America, the conservative advocacy group behind last week's ad launch that sought to frame the confirmation fight before Democrats have a chance.

Progress for America has said it will spend $18 million to support whomever Bush nominates to the court; liberal advocacy organizations could easily match that. Then again, they might have to hold their fire.

For all the preparations and speculation about an imminent vacancy, there has been not a word from the man at the center of the frenzy about his intentions. Since he announced last fall that he was undergoing treatment for thyroid cancer, much of the discussion surrounding Chief Justice William H. Rehnquist has been when he would retire, not whether.

But Rehnquist, 80, has given no public clues about his plans, and a number of lawyers, scholars and court analysts have said in recent weeks that the court could finish its work for the year without announcing any changes to the bench - or with a departure from another of the court's most senior justices, Sandra Day O'Connor.

"There is a very powerful view within the court that you always act in a way that maximizes the chance of a full court," David Garrow, an Emory University law professor and court historian, said last week. "If [Rehnquist] had any serious present doubt about his ability to remain on the bench in October, he would have announced by now he is retiring."

Narrow window

The timetable to appoint a new justice is narrow. Any nomination by the White House would require Senate confirmation. With the Senate gone next week for the July 4 holiday and all of August for its summer recess, that effectively leaves four weeks in September to confirm a new justice in time for the start of the court's next term on Oct. 3.

Rehnquist was absent from the bench for five months this year after he underwent a tracheotomy operation and then treatments of radiation and chemotherapy for thyroid cancer. He has released no other details about his illness, but he has appeared steadily stronger since returning to the bench in March. He has presided over all of the court's public sessions.

"If he doesn't step aside, then the interesting question is, `How come?'" said David Atkinson, a political science professor at the University of Missouri-Kansas City who has written about Supreme Court departures.

One possibility is that Rehnquist would assess his health over the summer and then decide whether to stay or step down, Atkinson said. Or the chief justice might already have been told by his doctors that he can continue to serve.

"A number of us had occasion to have lunch with members of the Supreme Court last week, and the chief justice looked remarkably fit," said Pennsylvania Sen. Arlen Specter, the Republican chairman of the Senate Judiciary Committee. "We saw him when he administered the oath to the president some five months ago, when he was helped down to the podium, a little shaky and his voice a little faltering, but last Thursday, he looked remarkably well.

"What he intends to do, or what anyone else intends to do, remains to be seen," Specter said.

That has not slowed speculation. The conservative commentator William Kristol, who was chief of staff to former Vice President Dan Quayle and is now editor of the political magazine The Weekly Standard, suggested in an online essay last week that Rehnquist would not retire, but 75-year-old O'Connor might - and could already have signaled her plans to the chief justice.

"Rehnquist probably believes that it wouldn't be good for the court to have two resignations at once, so he would presumably stay on for as long as his health permits, and/or until after Justice O'Connor's replacement is confirmed," Kristol wrote.

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