Wednesday, June 11, 2003

Any prospects for a partisan fight this summer over confirming President Bush’s first Supreme Court nominee appeared to dim recently after justices agreed to hear a contentious case in September, signaling that the bench will remain unchanged at least until then.

Despite the court’s decision Thursday to consider campaign-finance reform, the Senate Judiciary Committee is forging ahead with contingency plans based on what a Senate Republican leadership staff member called “the 100-percent expectation a vacancy will occur.”

The Senate’s preparation and much of the speculation over which of the three eldest Supreme Court justices might retire this month are driven by groups such as People for the American Way, which have opposed Mr. Bush’s judicial nominations.

Since before the 2000 election, groups such as PFAW have raised money by annually predicting doom for the Constitution if Mr. Bush were allowed to install judges on the Supreme Court. PFAW President Ralph Neas declared last week that at least one justice will resign, creating “the first of three or four openings” in coming years.

Such activists have sounded the alarms even though several factors indicate that the most stable nine-justice high court in history will remain unchanged for two more years.

Most analysts expecting a retirement consider Chief Justice William H. Rehnquist, 78, or Justice Sandra Day O’Connor, 73, the most likely to depart, even though each plays a key role in the most sharply split cases and both still write books and pursue activities outside the court.

The true dark horse is Justice John Paul Stevens, who at 83 is an avid tennis player said to abhor letting a conservative Republican choose his replacement.

Sources who have contacts with Chief Justice Rehnquist said they doubt he plans to quit, and he bandies words with those brash enough to raise the question. After the chief justice visited Mr. Bush at the White House in December, both parties let it be known his mission was a hunt for allies to raise judicial salaries.

Skeptics of that account consider the visit a pretext for a nominating-strategy session.

Mr. Bush announced May 9 that Justice O’Connor would lead a team of judges to Bahrain in September to help improve Middle East court systems, but a White House spokesman couldn’t confirm yesterday whether the president and Justice O’Connor had spoken.

Justice O’Connor’s only public comment about her position on the court was to dampen speculation she might be elevated to chief justice. When asked, she replied, “I’m too old,” the Christian Science Monitor reported.

“It’s very possible that they won’t retire,” said Artemus Ward, author of “Deciding to Leave: The Politics of Retirement From the United States Supreme Court.”

“Why retire when you’re at the top of your game?” he said.

He considers the chief justice the most likely candidate — ending his 32-year tenure on the court — although Mr. Rehnquist often mentions future projects and recently extended for a fourth year the appointment of administrative assistant Sally M. Rider.

Washington lawyer James C. Duff, her predecessor in that post, remains involved with the chief justice’s efforts to win pay raises for federal judges but refused to discuss departures and scoffed at reports that imply inside knowledge.

“When I took the job in 1996, I remember reading an article which said that the winner of the Clinton-Dole presidential election would have four nominees to the court. Of course there have been none since then,” Mr. Duff said.

During a presidential debate in 2000, Mr. Gore said, “The next president is going to appoint three, maybe even four justices of the Supreme Court.”

Because no one expects a vacancy during next year’s presidential campaign year — absent death or disability — the next two weeks would be the last real chance for an appointment until June 2005.

Mr. Ward questioned reports that more than one justice could retire now.

“That’s never happened in the history of the court,” he said. The closest exception were retirements of Justices Hugo Black and John Harlan a week apart in September 1971, shortly before both died.

Mr. Ward estimated that the life expectancy for today’s Supreme Court justices is 87, about 15 years longer than the average for white men in America.

“To remain a Supreme Court justice keeps you alive, to some extent,” Mr. Ward said.

Justices traditionally guard retirement plans until announced from the bench at term’s end.

“Even other members of the court are sort of the last to know. It is kept very secret,” said Mr. Ward, who is on leave from Northern Illinois University for a one-year American Political Science Association fellowship at the House Judiciary Committee.

“The justices are concerned with minimizing the politicization of the succession process to protect the institution,” he said.

Because the Supreme Court put the Bipartisan Campaign Reform Act case on a fast track, justices must review the mountain of legal briefs filed through the summer. They have slated an extraordinary four-hour hearing for Sept. 8, a month before the next term begins.

“I would be very pleased if no one resigned,” Mr. Neas said. “If President George W. Bush nominates someone in the mold of Antonin Scalia and Clarence Thomas, as he has certainly said he intended to do, then there would be one of the most intense confirmation battles in the nation’s history.”

The median age for court retirees is 78. The chief justice marks his 79th birthday in October, and Justice O’Connor turned 73 on May 26. Only Justice Stevens exceeds that median; he turned 83 on April 20.

Five justices were older than Justice Stevens when they retired, and four of them did so since 1971, when Justice Black quit at age 85, followed in 1990 by William Brennan, 84, a year later by Thurgood Marshall, three months past his 83rd birthday, and in 1994 by Harry Blackmun, 85.

Between June 19, 1811, and March 18, 1823, the seven-member court remained intact. The current cast has not changed since Aug. 3, 1994, the longest period without a vacancy since Congress created the eighth and ninth seats in 1837.

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