Taking the Pulse

Just when it seemed that every possible issue in the presidential election had been exhaustively picked over, Chief Justice William Rehnquist reminded us with the announcement of his illness that the direction of the high court is at stake on November 2.

The U.S. Supreme Court reported that the 80-year-old Rehnquist has thyroid cancer. He is expected back in court next week, but that didn’t stop legal and political observers from asking ghoulish, but necessary, questions. What if Rehnquist dies before the election? Or after the election, but before the inauguration? Or what if he lives, but resigns? Or what if he stays around only long enough to help decide this year’s presidential election, as he did the last one? And just how well are all the other justices feeling these days?

The power to shape the court was on top of the campaign agenda when Bush squared off against Al Gore four years ago. The justices’ role took an even higher profile when they had the final say in the election’s outcome, and later when they began issuing rulings that tried to balance the president’s wartime power with the constitutional rights of prisoners and “detainees.”

But although the same nine justices are in place four years later, Bush and challenger John Kerry have said next to nothing about the court, in part because Iraq is simpler to discuss, and in part because it’s unclear how voters would respond to reminders that the tightly balanced court could shift direction if any single member is replaced.

Bush critics have been relieved that the president has (so far) had to keep his mitts off the Supreme Court. But besides the ailing Rehnquist, seven more of the court’s members are over 65 (only Clarence Thomas is younger). Justices John Paul Stevens, Sandra Day O’Connor, Ruth Bader Ginsburg and now Rehnquist have been treated for cancer.

If a justice bows out in the next several months, some left-leaning court watchers would just as soon it be Rehnquist, whose 1972 appointment began the court’s rightward drift, as anyone. He dissented in Roe v. Wade and authored numerous opinions for a court that sought to end what he saw as judicial activism. He led a decidedly conservative court on his 1986 appointment as chief justice. But he since has been outflanked on the right by Thomas and Antonin Scalia, and if Bush gets the next appointment, he would almost certainly replace him with someone in that more conservative vein.

If a vacancy on the high court opens up between now and next January 20, when either Bush or Kerry takes the oath, it would be up to Bush to appoint a successor. But the Senate would have to confirm, and, practically speaking, there just isn’t enough time. Besides, although Republicans currently make up a majority, the Democrats have the power to stall a vote and certainly would do just that if Kerry wins on November 2. The nomination would expire when the Senate takes its final recess.

But if Bush waits until the Senate leaves, he could make a recess appointment, in effect putting his nominee on the Supreme Court by himself and allowing the new justice to stay until the Senate gets around to the confirmation process. He has agreed with Democrats not to make recess appointments, but it’s not clear if anyone had the Supreme Court in mind when the two parties were working out the details. In a nightmare scenario, a Bush recess appointee to the court theoretically could be on hand to cast a vote in any legal challenge to the election’s outcome.

It is almost certain that at least Rehnquist, and perhaps as many as three of his elderly colleagues, will leave the court in the next four years. That makes the court’s composition the most important election issue that no one wants to talk about.

It also leaves each of the justices, assuming they survive, with their most important votes still to be cast. By timing their departures, they can pick whether the current president, or the next one, will replace them.

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