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Justices mum, but retirement's all the talk

http://www.jewishworldreview.com | (KRT) When Reagan administration officials asked William Rehnquist to become chief justice, Rehnquist said he could do the job for 10 years. Seventeen years later, Rehnquist still has not retired from the Supreme Court, and observers are deeply involved in puzzling over whether he - or another justice - will step down this summer.

Potential Supreme Court retirements are among the few well-kept secrets in Washington, but there is a new sense of urgency to the speculation this spring. If a justice is to step down, it would most likely be within the next six weeks, to give President Bush time to name a successor before the upcoming court term and the 2004 campaign.

"This is the last chance before the election," said a Republican lawyer close to the administration. "If it's going to happen in Bush's first term, it's going to happen now."

Most observers speculate that Rehnquist, 78, along with Justices Sandra Day O'Connor, 73, and John Paul Stevens, 83, are most likely to retire soon.

Still, none has given any indication that he or she is considering stepping down, and all three remain very active inside and outside the court.

That, coupled with the rancorous fights over Bush nominees for lower courts, has prompted some to suggest that the Supreme Court could remain intact for at least another term. The court has had the same lineup of justices since 1994, longer than any Supreme Court in more than 150 years.

That Bush could go four years without naming a Supreme Court justice was not considered a serious possibility during the 2000 presidential campaign, when Bush and Democrat Al Gore emphasized that the next president could chart the direction of the nation's highest court.

It was assumed then that the winning candidate would be able to name two and possibly three justices to the court. Because the nine-member court is divided on contentious issues, with conservatives generally prevailing by one vote, the new president, it was believed, could change how the court rules on some of the most controversial issues in society.

When Bush took office, White House lawyers immediately set to work researching the records and legal opinions of potential nominees, ensuring that the administration would be ready for a retirement if one occurred.

The Bush team hoped to avoid a repeat of former President Bill Clinton's anguished public search for nominees to replace Justices Byron White and Harry Blackmun, a process that resulted in the nominations - and confirmations - of Ruth Bader Ginsburg and Stephen Breyer.

The Bush White House has focused on an array of possible nominees, but the leading contenders have always included White House Counsel Alberto Gonzales and J. Harvie Wilkinson, a judge on the U.S. Court of Appeals for the 4th Circuit, according to several lawyers close to the administration.

Bush has indicated he would like to name the first Hispanic to the Supreme Court, and Gonzales, his trusted adviser, is widely considered the leading candidate for a vacancy, perhaps even chief justice.

But who is nominated also could depend on which justice retires. Some on the right fear Gonzales lacks solid conservative credentials, and they worry that if he replaced the staunchly conservative Rehnquist it would actually move the court left. They would prefer Wilkinson or Michael Luttig, a colleague of Wilkinson's on the 4th Circuit in Richmond, Va.

If this summer passes without a retirement, Bush could miss an opportunity to name a justice to the high court altogether if he is not re-elected. Only two presidents in the nation's history, Andrew Johnson and Jimmy Carter, did not get to make a Supreme Court appointment.

A serious illness aside, Supreme Court justices are loath to retire during an election year, considering it almost irresponsible to entangle the confirmation process in a presidential campaign. The last time a president sought to push through a nomination during an election year was 1968, when Lyndon Johnson tapped his longtime aide Abe Fortas for chief justice. Johnson ultimately was forced to withdraw the nomination.

The leading prospect for a retirement this summer is believed to be Rehnquist, who heads a court that frequently is described as collegial and congenial, and one he has steadily guided to the right on issues of states' rights and the separation of powers.

A stern disciplinarian with a dry wit, Rehnquist is well-regarded by his colleagues, even those who often part ways with him ideologically. Ginsburg, for example, fondly refers to Rehnquist as "my chief."

While Rehnquist appears as sharp as ever on the bench - peppering lawyers with questions and admonishing others for not following court procedure - he has said he does not plan to spend his life on the high court.

If Rehnquist retires this year, some say it would be solely to ensure that a Republican president gets to appoint his successor.

"It would be a selfless act," said another Republican lawyer with close ties to the administration. "I don't think he has any personal reason to do it, other than loyalty to the party that first nominated him, which I think he takes very seriously."

O'Connor, a former Republican leader in the Arizona state Senate and the Supreme Court's first female justice, also has given no indication she is ready to retire. Active and engaged, she typically is the first justice to fire off a question during oral arguments, and she wields tremendous influence in how the court's opinions are crafted.

A moderate conservative, she often is seen as a key swing vote who restrains her more conservative colleagues on issues such as race and religion.

O'Connor has a no-nonsense demeanor that seems to reflect her upbringing on a Western cattle ranch, and she has just written two books, one on her childhood and another on the law. The latter she dedicated to her law clerks - "past, present and future."

Some have speculated that a Rehnquist retirement could give the White House a chance to make history and name O'Connor the first female chief justice. It then could turn to an ardent conservative, such as Luttig, to take her place on the court.

The Reagan administration pursued a similar strategy in 1986, when it elevated Rehnquist, who was then an associate justice on the court, and tapped Antonin Scalia to take his place.

But the strategy seems unlikely for a number of reasons. O'Connor would be the oldest chief justice nominee in court history, and many in the White House would prefer that she retire so they could nominate a younger successor.

"For her to be considered for chief justice, she'd essentially be a bookmark, holding a place in essence for a second term when the Bush administration could then appoint a kind of young leader for the court over the next 30 years," said David Yalof, a University of Connecticut professor who has written a book on the nominations process.

Moreover, some conservatives oppose O'Connor because she refused to overturn Roe vs. Wade in 1992 and has been a moderate on high-profile issues such the separation of church and state. Her elevation also would give Senate Democrats an opportunity to raise again the specter of Bush vs. Gore, the 5-4 Supreme Court decision in 2000, which O'Connor backed, that stopped the Florida recount and guaranteed that Bush would become president.

Whether a nominee could be confirmed has become a major concern for the administration. When the Republicans regained control of the Senate in November, many observers envisioned smooth sailing for Bush's judicial nominees.

But liberal interest groups have scrutinized Bush's nominees to the lower courts, and Senate Democrats have fiercely opposed a number of them. Those battles - which currently include two Senate filibusters of appeals court nominees - are now seen as dress rehearsals for a bloody Supreme Court confirmation fight.

But these fights also could have another effect: The filibusters and bitter debate over appeals court nominees could signal to Rehnquist and O'Connor that their successors would face such a firestorm that a better strategy might be to hang on.

The filibusters could give Stevens, nominated in 1975 by Republican President Gerald Ford but perhaps the court's most liberal member, greater incentive to step down.

A former Chicagoan, Stevens could satisfy any loyalty to the Republican Party by retiring now, but also take comfort in knowing the Democrats could block a strict conservative from taking his place.

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