By MARGARET TALEV
June 26, 2005
The most anticipated possible retirement has been that of Chief Justice William Rehnquist, the 80-year-old conservative jurist who has been undergoing treatment for thyroid cancer. But Rehnquist may wait out the summer, since the Senate might not be able to act quickly enough to confirm a new justice anyway before its month-long recess in August. Some of his fans even hope that if doctors, in the meantime, give him a decent prognosis, Rehnquist surprises everyone and postpones retirement indefinitely. He isn't saying.
But here in the nation's capital, where conservative activists see the remainder of President Bush's second term as the ripest time to shift the divided court in their favor - and where liberal activists are rallying their forces by predicting the undoing of abortion rights and modern civil liberties - the speculation around the future of the nine-member court of lifetime appointees has swelled to an all-consuming fever:
Could one of the more moderate or liberal, aging justices on the court - Sandra Day O'Connor or John Paul Stevens - also be planning announcements of their own, truly providing conservatives the window to shift interpretation of the nation's laws to the right?
Whom will the president nominate to fill any vacancy? To be the next chief justice? And will the minority Democrats in the Senate try to block those nominees with more filibusters?
The White House is saying little, out of respect for Rehnquist and a desire to protect the president's strategy.
"I think it would be premature to even try to speculate about things at this point," spokesman Scott McClellan said last week. "Obviously, if there is a vacancy, we are prepared for that scenario, like any White House. We have made preparations to be ready in case someone does leave the Supreme Court. At this point, no one has."
Even so, the legal community and ideological interest groups, from liberal to conservative, generally agree on a list of nominees whom they believe the president has been considering in the event of one or more vacancies. In the rough order several observers predicted their prospects, they are:
- John G. Roberts, a U.S. Circuit Court of Appeals judge for the D.C. Circuit.
- J. Michael Luttig, of the 4th U.S. Circuit Court of Appeals in Richmond, Va.
- Emilio Garza, of the 5th Circuit in New Orleans.
- Attorney General Alberto Gonzales.
- Samuel Alito, of the 3rd Circuit in Philadelphia
- J. Harvie Wilkinson III, of the 4th Circuit
- Michael W. McConnell, of the 10th Circuit in Colorado.
- Ted Olson, a former solicitor general and a private attorney who represented Bush in the 2000 election case that decided his presidency.
- Larry Thompson, former deputy attorney general under John Ashcroft, now an executive with PepsiCo Inc.
- Miguel Estrada, a private attorney whose 2001 nomination for the D.C. Circuit was blocked by Democrats as the first in a string of judicial filibusters
- Edith Jones of the 5th Circuit.
- Danny J. Boggs, chief judge of the 6th Circuit.
- Sen. John Cornyn, R-Texas.
- Sen. Jon Kyl, R-Ariz.
This ranking assumes Rehnquist would be the first to retire, and that Bush likely would tap someone already on the court - such as Justice Antonin Scalia - to be chief justice. If the president wanted to fill the vacancy and chief justice slot simultaneously, older, more seasoned candidates might rise in stature. Even if an associate justice were tapped for chief justice, he or she still would need Senate confirmation for the chief's post. If a more liberal justice than Rehnquist retired first, the president might gravitate toward candidates whom Democrats would have a harder time opposing in the confirmation process. And if Bush wants his legacy to include appointment of a Hispanic chief justice, that also could affect his decision.
"This president has a penchant for surprising with his picks," said Sean Rushton, executive director of the Committee for Justice, a group founded by former White House Counsel C. Boyden Gray to support the president's nominees. "I'd caution everybody not to bet the farm on these conventional wisdom nominees."
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