Tuesday, October 26, 2004

The surprise announcement of Chief Justice William H. Rehnquist’s treatment for cancer underscores the likelihood that whoever wins next week’s presidential election is likely to reshape the Supreme Court.

Chief Justice Rehnquist, 80, spent the weekend at the National Naval Medical Center in Bethesda, where he underwent a tracheotomy for thyroid cancer, the Supreme Court announced yesterday. The court said he is expected to return to work Monday, one day before the election.

While both liberals and conservatives rushed to extend their best wishes for Chief Justice Rehnquist’s speedy recovery yesterday, both sides also busily speculated how the news might help or hurt President Bush or challenger Sen. John Kerry in the election.

“Justice Rehnquist’s illness highlights the concern among conservatives — as well as moderates — who must consider the prospect of a President Kerry nominating Hillary Clinton to the Supreme Court,” said Sean Rushton, spokesman for the conservative Committee for Justice. “That really focuses the minds of voters.”

Ralph Neas of the liberal group People for the American Way was also concerned.

“The future of the Supreme Court is certainly the most important domestic issue facing the country today,” Mr. Neas said. “While the issue does energize both bases, it also energizes independents and moderates who care deeply about privacy and reproductive rights.”

At the very least, the news intensifies the political standoff going into the final week of the campaigns. It also reminds voters of the acrimonious presidential contest four years ago that wound up in the Supreme Court, where many Democrats say partisanship influenced the decision that ended the Florida recount dispute.

Court watchers of every stripe agree that the winner of next week’s presidential election likely will nominate at least two justices to the high court.

Chief Justice Rehnquist and Justice Sandra Day O’Connor both are expected to retire in the next year or so. Many observers have speculated that the only reason they haven’t retired is that the two Republican appointees wanted to wait until Mr. Bush was re-elected without the court’s involvement — or perhaps even to retire during a Democratic administration.

Many observers say as many as four seats on the Supreme Court could have vacancies during the next presidential term.

It has been 10 years since the high court’s last retirement, when Justice Harry A. Blackmun stepped down, Mr. Neas pointed out, the longest such retirement drought since 1823.

Mr. Rushton called Chief Justice Rehnquist “the godfather” among three reliable conservative votes on the court — along with Justices Clarence Thomas and Antonin Scalia — and said replacing him with anyone less conservative would shift the court’s balance drastically toward the left.

“Just to hold our position would suddenly become much more complicated,” he said.

Many conservatives have expressed concern over the prospect of a Kerry administration because the Democratic challenger has said he would rule out appointing judges who do not support abortion rights.

Both liberals and conservatives lament — at least privately — that neither Mr. Bush nor Mr. Kerry has made judicial nominations a central issue of the presidential campaign. Strategists on both sides figured the debate would spill across the country during the presidential campaign.

Some of the most bitter battles in Mr. Bush’s term have revolved around the president’s nominees to federal courts, many of whom have been blocked by Senate Democrats, including several whose nomination votes have been filibustered in the Senate.

Activists yesterday seized on the news of Chief Justice Rehnquist’s illness to call voters’ attention to the role the president plays in choosing the federal judiciary.

If Reagan appointee Robert Bork — whose Supreme Court nomination was rejected by the Democrat-controlled Senate in 1987 — had been confirmed, “Roe v. Wade would already have been overturned,” said Mr. Neas, referring to the decision that guarantees the right to abortion.

Mr. Rushton said the prospect of Chief Justice Rehnquist’s retirement frightens conservatives even more.

“People don’t want a court that is going to set a whole lot of social policy or completely scrub religion from the public square,” he said. “Average folks don’t want the court mandating gay marriage.”

Elizabeth Cavendish, interim president of NARAL Pro-Choice America, called the news “a sobering reminder of just how high the stakes are in this election” and said Mr. Bush “cannot be trusted” to nominate people to the Supreme Court.

“If President Bush were to nominate Supreme Court justices in the mode of judges he has named so far, the right to privacy and right to choose [abortion] would be doomed,” she said. “Americans who believe in choice will show up in record numbers next Tuesday to make sure that does not happen.”

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