Rehnquist illness adds new element to presidential campaign
October 26, 2004
WASHINGTON – Chief Justice William Rehnquist has been hospitalized for treatment of thyroid cancer, the Supreme Court announced Monday, throwing yet another unknown into the presidential race and the future of the nation’s highest court.
Partisans on both sides have focused intently on the next president’s likely appointment of two or three Supreme Court justices, but it has not emerged as a major issue in the presidential campaign. That may change, however, as Rehnquist’s hospitalization highlights the fragility of a court whose mostly elderly justices have served together for a decade.
Few details were available on the condition of Rehnquist, 80, who underwent a tracheotomy – a procedure in which a tube is inserted into the throat – on Saturday at Bethesda Naval Hospital. But court officials said they expected Rehnquist to be on the bench when the justices reconvene on Nov. 1, the day before Election Day.
Speculation and rumors have surrounded the health of various justices in recent years, notably Rehnquist, Sandra Day O’Connor and John Paul Stevens. Because the court is divided 5-4 on many issues, any change in a justice’s health has been watched nervously, and Rehnquist’s hospitalization just a week before a hard-fought election is a dramatic event.
“It looks like Chief Justice Rehnquist will be fine, and that is a good and positive development,” said Elliot Mincberg, legal director of the liberal People for the American Way. “But something like this will remind people that … the next president is likely to have two or three vacancies, and some people say four.”
Neither President Bush nor Democratic rival John Kerry publicly mentioned the chief justice’s ailment Monday. But at a campaign appearance in Greeley, Colo., Bush did remind several thousand people how much is at stake in Supreme Court appointments.
“I’ll name judges that know the difference between personal opinion and the strict interpretation of the law,” said Bush, who has repeatedly pledged to appoint judges who follow the law rather than make it.
Kerry, for his part, has been citing the court with increasing frequency as a reason to vote for him, telling a Miami rally after the first presidential debate, “I’ll tell you, if you just needed three words of motivation – You want ’em? – `The Supreme Court.”’
When Bush was elected four years ago, many were confident he would appoint as many as three justices. For the past four years, court watchers would anxiously anticipate an announcement from the bench that a justice was stepping down. The White House was ready with a short list of possible nominees to fill any vacancies; liberal groups were poised to oppose them.
But the justices stayed put, giving the next president a remarkable opportunity to reshape the court. As Rehnquist’s illness highlights, the odds of a retirement or two have gone up considerably.
“The stakes could not be any higher,” said Nan Aron, president of Alliance for Justice, which has worked to defeat some of Bush’s judicial nominees. “The next president will be setting the direction of the Supreme Court for the next four decades, with the court so sharply split on major issues.”
In the last 10 years, since the current court has been together, the justices have ruled on sweeping constitutional issues by one- or two-vote majorities, including affirmative action, the separation of church and state, government restrictions on abortion and the rights of accused criminals.
Even before Monday’s announcement, the justices’ ages suggested an imminent retirement. Only one of the court’s nine justices, Clarence Thomas, 56, is younger than retirement age. Two are in their 80s, and two more in their 70s.
“Time marches on, and, four years later, the chances are even greater there will be one or more retirements on the court,” said Mark Levy, a lawyer who practices before the Supreme Court and worked in the Clinton administration.
Yet the prospect of a court retirement has gotten less attention on the campaign trail than it did in the last election, with voters focused heavily on terrorism, the Iraq war and the economy.
When the candidates have mentioned the court, they generally have emphasized Roe v. Wade, the court’s 1973 decision that a woman has a constitutional right to an abortion. In the last presidential debate, Kerry said he would not appoint a nominee who would vote to overturn Roe vs. Wade.
Bush said he had no litmus tests, although he has said he would appoint justices in the mold of Thomas and Justice Antonin Scalia, the court’s most ardent conservatives who have urged their colleagues to overturn Roe.
Rehnquist’s hospitalization may shine a belated spotlight on the court. Whether that will help Bush or Kerry is open to debate.
Sean Rushton, executive director of the conservative Committee for Justice, said most mainstream voters are uncomfortable with judges who make law rather than interpret it. Because that echoes the conservative view, he suggested, more discussion of the court would help Republicans.
“The idea of a Rehnquist being replaced by a Mario Cuomo, or somebody less high-profile but of that perspective, not only sends a bolt of shock down the spines of conservatives but also down the spines of self-proclaimed moderates,” Rushton said.
Northwestern University law professor Steven Lubet disagreed.
“It was extremely likely that there would be a vacancy in any event, but the hospitalization of the chief brings that issue front and center,” Lubet said. “I think it will motivate voters on both sides. But that helps the Democrats because their voters are usually harder to motivate.”
In any case, there was no indication Monday that Rehnquist’s long career was coming to a close imminently. Even if the chief justice were to step down before year’s end – and there is no reason to believe he will – the president and the Senate would almost certainly take no action before the new president and Congress are sworn in next January.
Rehnquist was named to the Supreme Court by Richard Nixon in 1972, and was elevated to chief justice by Ronald Reagan in 1986.
Rehnquist has left his mark most notably in prodding the court to grant more power to the states in relation to Congress. He has found himself in the minority in cases involving controversial social issues, such as abortion, gay rights and affirmative action.
The Rehnquist court drew enormous, and not entirely positive, attention for the Bush v. Gore case that decided the 2000 election. Before that, many Americans knew Rehnquist best from the 1999 impeachment trial of then-President Bill Clinton. Because Supreme Court proceedings are not televised, it was a rare opportunity for the public to see Rehnquist in action.
Rehnquist is well liked even by those justices who differ from him ideologically. Justice Ruth Bader Ginsburg, who is much more liberal than Rehnquist, has been known to refer to him affectionately as “my chief.”
Even if Rehnquist or another justice were to step down, legal observers say it would be simplistic to assume that appointments by Bush or Kerry would inevitably push the court in one ideological direction or the other.
For one thing, justices do not necessarily vote as expected. The Reagan administration, for example, had hoped to see Roe v. Wade undone, but instead watched two of its appointees join a third Republican appointee to provide critical votes upholding the decision.
Since President Bush’s father appointed David Souter, he has become one of its most reliably liberal votes. On the flip side, Justice Stephen Breyer, a Clinton appointee, frequently disappoints liberals with his votes in criminal law cases.
And even if one justice was replaced by another with opposite views, the court still might not shift significantly. “They’re like players on a chess board,” said Christopher Landau, a former Supreme Court clerk for Scalia and Thomas who now practices appellate law at the Chicago-based law firm of Kirkland ‘ Ellis. “They define themselves in relation to others.”
Notably, when Thomas joined the court in 1991, he may have pushed O’Connor, Kennedy and Souter more to the left.
What’s more, with the Senate so closely divided – Republicans currently hold an advantage of 51-48 with one independent, and that is unlikely to change dramatically – the next president may find it difficult to push through a nominee with extreme views.
Nonetheless, few dismiss the importance of one president being able to choose several justices. Mincberg said Rehnquist’s illness, by reminding people that he came to the court 32 years ago, underlines the significance of Supreme Court appointments.
“President Nixon was elected in 1968. Here it is 2004, and 36 years later that appointment is still having a tremendous impact on America’s rights and liberties,” Mincberg said. “We are not talking about the next four years, but possibly about the next 40 years.”
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(Chicago Tribune correspondent Mark Silva contributed to this report.)
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(c) 2004, Chicago Tribune.
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