By MARY DEIBEL
Scripps Howard News Service
June 21, 2005
These nine justices have served together 11 terms, the longest stretch in high-court history. That record, along with Rehnquist's treatment for thyroid cancer since October, have fueled speculation that the 80-year-old jurist will retire at the conclusion of the term after 33 years on the court, a tenure that ranks second only to Justice William O. Douglas' 36 years.
Rehnquist has continued to run court business since December and presided at public sessions since March. He's thinner and paler but appears stronger than many expect: Senate Judiciary Chairman Arlen Specter, R-Pa., says Rehnquist didn't look like a man about to retire at last week's Supreme Court lunch with congressional leaders.
But to Sheldon Goldman, a court-watching political scientist at the University of Massachusetts, Rehnquist is "a good student of history and politics" who knows time is limited for Bush to pick a conservative replacement. Politics will make it more difficult for the president in 2006, a congressional election year.
For now, Rehnquist is keeping his own counsel.
So is Bush although his White House, like every other modern White House, keeps a "short list" it has vetted since Day One of possible Supreme Court replacements.
Interest groups across the spectrum have readied war rooms for the biggest confirmation fight since 1991's Senate donnybrook over Clarence Thomas, who was accused of sexual harassment by Anita Hill. The conservative Progress for America alone is pledging to raise at least $18 million to support a Bush choice, while a coalition of civil rights, labor and environmental groups promise to match conservatives dollar for dollar.
How Bush chooses a nominee "depends on White House political calculations," including whether a confirmation firefight is worth sucking oxygen from other Bush priorities, legal historian Bruce Allen Murphy of Lafayette College said.
Should the first vacancy be the chief justice's slot, Bush could promote from within, Murphy said, noting that during the 2000 presidential campaign Bush cited Justices Antonin Scalia and Thomas as the sort of "strict constructionists" he'd choose.
Court watchers believe Scalia is interested, given his recent "charm offensive" that included the camera-shy justice in a televised sit-down with NBC's Tim Russert. But at age 69, Scalia isn't the young judicial nominee that Republican presidents have preferred in hopes of shaping the court and the law for years.
Thomas, who turns 57 Thursday, is the only justice under 65. Although Thomas biographer Kenneth Foskett says the White House sounded out Thomas, Thomas reportedly isn't eager for promotion and another confirmation battle.
Senate Democratic leader Harry Reid of Nevada has signaled he considers Scalia "one smart guy" even when they disagree but complains Thomas is "an embarrassment."
Rather than promote from within, Bush could choose an outsider - a known conservative who could lead the court for decades.
Names on that list include Michael Luttig, Michael McConnell, John Roberts and J. Harvie Wilkinson, all federal appellate judges with conservative track records.
At 60, Wilkinson's age could work against him, but his credentials as former chief judge of the conservative 4th U.S. Circuit Court of Appeals in Richmond, Va., fit the job.
Luttig, with 15 years on that same court, is just as conservative and only 50. However, his paper trail runs through a minefield for critics - unlike Roberts, also 50, a recent arrival to the U.S. Circuit Court of Appeals for the District of Columbia.
McConnell, 50, has been on the 10th Circuit Court of Appeals in Denver only since 2003 but wrote extensively as a Chicago and Utah law professor. A church-state expert and abortion rights critic, he has support from Christian conservatives and the Federalist Society, a group of conservative lawyers and academics with White House ties.
Rather than promote a white male appellate judge, Bush could make political history by picking the court's first Hispanic justice. Hispanics are the nation's largest, fastest growing minority and a constituency Republicans hope to woo.
"Appointing a Hispanic chief justice would be a dramatic gesture that would resonate for the decades of his tenure," Supreme Court lawyer and ScotusBlog founder Tom Goldstein contends. He thinks a likely candidate is Emilio Garza, a Texan on the 5th U.S. Circuit Court of Appeals.
At 57, Garza has been on the federal bench since 1988 and has the experience and background to be a Bush choice without becoming a lightening rod for Bush critics.
But the president could choose his longtime adviser Attorney General Alberto Gonzales, 49, even though left and right alike are unhappy with parts of Gonzales' record. Liberals dislike his role in the legal memos that appeared to sanction prisoner mistreatment at Guantanamo, Cuba, and elsewhere. Conservatives dislike his support for affirmative action and question if he's conservative enough.
Still, Gonzales' up-by-the-bootstraps story and personal ties to Bush make the fellow Texan a likely choice.
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