(Ouch! Even if Bush loses, he could appoint a judge thaat would stay in power until January, 2006. Not good. A lot can happen in a year!)
http://www.philly.com/mld/inquirer/news/nation/10024459.htm?1cSpeculation is rising about Rehnquist, now hospitalized with cancer. Election-year politics add to the mix.
By Gina Holland
Associated Press
WASHINGTON - Chief Justice William H. Rehnquist's hospitalization for cancer brings with it the prospect of the first Supreme Court vacancy in a decade and is prompting speculation about who might take his place.
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Many of the high court's closest cases, such as the 2000 Bush v. Gore decision that gave Bush the presidency, are decided on 5-4 votes.
If Bush wins reelection, and Republicans keep their narrow control of the Senate, a Rehnquist retirement would allow Bush to promote a sitting justice to chief justice, and put a new face on the court. The Senate must confirm any new associate or chief justice.
Three of the court's conservatives would be good prospects under Bush: Anthony M. Kennedy, Sandra Day O'Connor, and Clarence Thomas. While Thomas would be Bush's preferred candidate, confirmation most likely would be at least as brutal as in 1991, when Thomas was nominated by Bush's father and barely survived accusations of sexual harassment.
Conservative Justice Antonin Scalia is so polarizing that even admirers say it would be difficult for him to win confirmation as chief justice.
O'Connor and Kennedy could win easy confirmation, but Bush's conservative base could oppose them because of their records on abortion and several other issues. If Bush taps one of them for the top spot, he could have more leeway to name a very conservative justice, such as J. Michael Luttig, a former Scalia clerk who serves on the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., or Samuel A. Alito, who is on the Third Circuit appeals court in Philadelphia.
Moderate judges have been mentioned as likely justices in a John Kerry administration, such as Merrick Garland, as well as some with strong civil rights credentials, including David Tatel. Garland and Tatel are federal appeals court judges in Washington.
Both sides have candidates for the first Hispanic Supreme Court justice. For Kerry, possibilities are Judges Jose A. Cabranes and Sonia Sotomayor, both of the Second Circuit Court of Appeals in New York. Bush prospects include White House counsel Alberto Gonzales and Washington lawyer Miguel Estrada, whose earlier nomination to an appeals court was blocked by Senate Democrats.
Former politicians are also attractive choices, as are young judges who could serve for 40 years or more on the court, said Jamin Raskin, a law professor at American University.
Rehnquist has been on the Supreme Court since 1972.
Even if Bush loses the election, Kmiec said, he could replace Rehnquist before Kerry's Jan. 20 inauguration, at least temporarily. Bush has used recess appointments, made while Congress is out of session, to get around Senate opposition to some of his judicial selections.
Such an appointment to the high court would last until January 2006.
In 1953, President Dwight Eisenhower used a recess appointment to name Earl Warren - then governor of California - as chief justice. But Eisenhower had not just lost an election, and the Senate confirmed Warren the following year.
Several appeals are pending at the Supreme Court that challenge Bush's use of recess appointments to put people on appeals courts. Critics of Bush's temporary appointments contend he may use them only at the end of a Congress or during the recess between annual sessions, not during short breaks.
The White House declined to weigh in. Spokeswoman Erin Healy said, "There are no vacancies on the court, and we're not going to speculate."
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