Most Republicans have to admit there’s a realistic possibility John Kerry will be elected. Now, Chief Justice William Rehnquist is 80 years old. If he doesn’t last another four years, Kerry may be in a position to nominate the next Chief Justice. (For that matter, four justices are past seventy - the next President may be making several appointments.)
That said, you have to wonder if anyone suggested to the Chief Justice that 2004 might have been a good year to put down the gavel. With a friendly Congress, Bush would have been able to name put another conservative justice on the court and name Scalia to Chief Justice. I realize such a suggestion is a sensitive subject and nothing official could be put forth. But were there hints being made that people were hoping Rehnquist would pick up?
Well, Thurgood Marshall and William Brennan didn’t have the sense to resign while Jimmy Carter was President, and if Carter ever hinted they should step down, he was ignored.
Fact is, most Supreme Court justices LIKE their jobs, and very few, liberal or conservative, leave willingly. I don’t think any current justice is in a hurry to retire.
Justices Brennan and Marshall were 73 and 71 when Carter left office. Neither man probably anticipated it would be 12 years before another Democrat entered the White House.
What brought this on? Have there been any rumors about Rehnquist being pressured to resign? We’re about to have an election which, if everything doesn’t go just exactly right, might again be decided in the SC. It would be a very bad idea for any SC justice to resign right now.
And they may have thought Carter would get re-elected at the time when it was early enough that they could have resigned and Carter nominated a replacement. Rehnquist would have been in the same boat if he was pressured to resign early this year. He’d likely think it sucked if he resigned and Bush was re-elected. Now if he thought Bush had no chance in November this would be different.
Excuse me, but just how does one pressure a Supreme Court Justice? They are appointed for life, so, short of holding a gun to their dog’s head, what can you do to coerce them to do anything they don’t want to do?
Rehnquist is 80 and has health problems. Stevens is 84. O’Connor is 74. Scalia and Kennedy are both 68. It doesn’t take to much effort to speculate that the next President is going to make some court appointments.
And it’s a major issue. Arguably, it can the biggest decision made by a President. And there’s no longer even a pretense that partisan politics aren’t a factor. So I’m sure I’m not the only person who’s thought about how this election will affect the Supreme Court.
I’m not suggesting anyone started strong-arming the man. I certainly doubt that any President or member of Congress would dare say or do anything directly.
But I could see where a neutral independant party like a conservative periodical might have published an editorial last spring about how William Rehnquist has served our nation so well over the years. And how he should now serve it by stepping aside for a younger man. The flattery would flow like a river, but the message would be it was time to get out.
Rhenquist, although I disagree with him, isn’t a stupid man. He should have realized that Bush could have gotten a moderate conservative approved by the Senate. Rhenquist has also been around long enough to realize anything could happen in a presidential election. I am very amazed he didn’t resign at the end of the court’s session.
The probability that one of more SCOTUS appointments will be made in the next presidential term is the major reason I will be voting for Kerry.
Others may think the War on Terror is the biggest issue (or War in Iraq, or Homeland Security), and frankly, I don’t see a big enough difference in the candidates to chose one over the other (although I do concur more with Kerry’s view of foreign policy than the neo-con view of the Bush administration).
Others might think it is the economy, or jobs, and again, I just don’t think the President has enough impact on those issues to warrant a high criteria in selecting where to place my vote (although, again, I lean toward Kerry, mostly related to liklihood that Congress will remain in Republican hands).
As someone who would lean toward conservatives on economic issues, Bush hasn’t shown that he will stop his fiscal liberalism - Kerry looks like the fiscal conservative in this race.
So I’m left with social issues, and the President’s biggest impact is the potential to change the makeup of SCOTUS. As a social liberal, Kerry is my clear choice. In my mind, the difference between the candidates here is the most significant selection criteria for earning my vote.
Before the 2000 election, the Chief Justice was openly flirting with the idea of retirement and there were rumors that Justice O’Connor was thinking of it too. However, the Chief – this Chief in particular – is very concerned with the maintenance of the Court’s integrity. Because the Court has no intrinsic power to enforce its edicts, it must rely on both the people and the government acquiesing to its pronouncements. (Remember Andrew Jackson after the Cherokee cases: "John Marshall has rendered his decision; now let him enforce it.) It seems plain to me that after the huge hit the Court’s reputation took after 2000, the Chief felt that if he or any of the other justices in the conservative bloc retired it would be taken as logrolling and the people would lose whatever faith they had left in the Court. Therefore he’s prevailed upon Justice O’Connor (and any others) to wait through this election, hoping that whatever the outcome is, the Court can stay out of it. Then when justices retire, it won’t seem like they handed the White House to the guy they wanted to pick their replacements. That means that whoever the next president is, I’m sure he’ll be appointing at least two justices, including the Chief. And it’s also rumored that if Justice Scalia isn’t in position to be elevated to Chief that he may retire to make a little money in private practice.
I suspect Rehnquist would deem it unseemly to resign during Bush’s first term after having helped hand the presidency to Bush with the Bush v. Gore decision. I suspect he was waiting hopefully for a second Bush term during which he could resign with less controversy or criticism.
I’ve never really paid attention to this in the past. How long does it usually take from the time a Supreme Court justice retires until a replacement is seated? Is there any chance that if Kerry was announced as winning, Rehnquist would immediately retire and Bush could fill the seat before the new president was sworn in?
Rehnquist could retire and Bush could quickly nominate a successor, but the Senate still has to consent to the nomination. Given that the Republicans don’t have a filibuster-proof majority in the Senate, the nomination would never get anywhere. Besides, “fast-tracking” a Supreme Court nominee would be unseemly, even in this day and age. Even if Bush does try this, Kerry could withdraw the nominee as soon as he takes the office.
I’m sure that there was “pressure” on certain elder conservatives on the Court to retire. I seem to recall a few times when Drudge led with breathless speculation about imminent retirements from the Court. Kudos to the members of the Court who decided to wait for a White House occupant untainted by a 5-4 decision.