Analysis: The Rehnquist question remains
on Jul 1, 2005 at 11:37 am
Justice Sandra Day O’Connor announced plan on Friday to retire leaves in a continued state of uncertainty the situation surrounding Chief Justice William H. Rehnquist. As of midday Friday, there still was no indication at the Court that Rehnquist would be making any announcement soon about his own plans. It is very likely that he had been told about O’Connor in advance, probably no later than Thursday, but there is no way to know whether that had made a difference.
Unless the Chief Justice already has made a firm decision to continue serving, O’Connor’s plan at a minimum complicates Rehnquist’s choice. There is genuine doubt that he would voluntarily opt to retire and create a second vacancy at a time when Senate approval of even one nominee has to be in serious doubt.
Although O’Connor plans to remain on the Court until the Senate approves a successor, that might not be an option that would be open to Rehnquist, should he be compelled by his health to retire. Given the present, doubtful state of his health as a cancer patient, any decision by him to depart probably would mean that he would not be able to remain while the process over a successor unfolded.
That could mean that the Court would return in October with one vacancy, and with a second vacancy imminent. Those who know Rehnquist do not believe he would put the Court in that position, if he could avoid doing so. Thus, the conclusion — tentative though it definitely is — is that Rehnquist will be remaining on the Court for the time being.
President Bush has it in his power to make the Senate process in considering an O’Connor successor move more rapidly and with less controversy. If he were to choose a nominee of unquestioned reputation, strong judicial temperament, and moderate views, the chances are that the Senate fight might not be as deep, as angry or as prolonged. But the fact that O’Connor’s replacement may well be in a position to turn the Court around on some of society’s most basic issues — such as the future of Roe v. Wade — may make irresistible the temptation to name a strong and reliable conservative who might be able to do just that. The President’s more conservative advisers, like Vice President Cheney and deputy staff chief Karl Rove, almost certainly will be pressing him to name as conservative a nominee as can be found. So will legions of his most conservative political followers.
If that happens, the dispute that would follow in the Senate may well make pale, by comparison, the fight in 1987 over replacing Justice Lewis F. Powell, Jr. — who, like O’Connor — held the balance of power on the Court. The controversy that arose over nominee Robert Bork, ultimately leading to his defeat as Powell’s successor, was about nothing less than the future of the Court. That could be at stake all over again.
