Washington – The Supreme Court retirement watch is far from over. After Sandra Day O’Connor’s surprise announcement last week, the attention is focused again on ailing Chief Justice William Rehnquist and the prospect of simultaneous high court openings for the first time in 34 years.
President Bush, who is traveling in Europe this week, plans to focus on a handful of prospective replacements for O’Connor over the next few weeks, an aide said Tuesday. That gives Rehn quist more time to ponder his future.
He could join O’Connor in retiring, setting the stage for a double nomination and Senate confirmation fight. Or he could remain on the job, overseeing the court through its first turnover since 1994.
So far Rehnquist, who is 80, has given no hints. His health is the biggest question. He received radiation and chemotherapy last fall for thyroid cancer. While his condition improved enough for him to return to the bench in March, he has appeared frail in recent weeks.
O’Connor, 75, said Friday that she would be leaving after 24 years to spend time with her husband, who is ill. The announcement was a surprise, since most attention had been focused on Rehn quist.
“I would think it (a second retirement) is less likely because the politics would become extremely messy for the president, the Senate and the court,” said John Yoo, who worked in the Bush administration and as the Senate Judiciary Committee’s general counsel.
“The one thing that the chief justice cares about is the institution. I don’t think he’d want the court to suffer from instability.”
If Rehnquist steps down soon, it would give the president time to name a successor and allow the Senate to hold confirmation hearings in September. The Supreme Court does not meet again until October.
The last time there were simultaneous vacancies at the court was 1971, when Justices Hugo Black and John Marshall Harlan retired in September, about a week apart. Rehnquist, then a Justice Department lawyer, urged the Nixon administration to move fast in replacing them. After Nixon’s first two choices were harshly criticized, he named Lewis Powell and Rehn quist.
Democrats have said they would oppose having dual confirmation hearings for a Supreme Court chief justice and a new associate justice. They complained bitterly when then- Senate Judiciary Committee chairman Orrin Hatch, R-Utah, held confirmation hearings for multiple federal appeals court nominees at the same time in 2003.
Two openings would give Bush an opportunity, albeit one with potential political pitfalls.
“When he’s facing one vacancy at a time, it’s less tricky,” said David Alistair Yalof, a University of Connecticut professor and author of a book on Supreme Court vacancies.
“There’s no argument for a president to hold back. The president can go for a home run.”
Yalof said Senate Democrats will expect some compromise if there are two vacancies – possibly a package that includes a conservative nominee and a second choice considered more moderate.
