Let’s say Kerry wins today and Rehnquist retires/dies in December.
Who gets to appoint the next one?
Technically, Bush could appoint a new Chief Justice, but I think it’s quite unlikely that the Senate would confirm him before Kerry’s inauguration. IIRC, the new president can withdraw a nominee.
Bush could make a recess appointment. If the Supreme Court were tied 4-4 on some major issue with the election just imagine the controversy it’d create.
The Supreme Court ties 4-4 all the time for a huge number of reasons: recusals; illnesses; deaths; retirements. All that happens is that the lower court verdict is upheld.
The Court also has great leeway to consider and announce a decision at any time during the several-months-long term and, I believe, can hold it over until a following term.
This is a non-issue.
Unless something regarding the 2004 presidential election makes its way to the Court and Rehnquist is not available to hear it, or dies/resigns and Bush makes a recess appointment. It would be rather difficult for SCOTUS to hold over Florida-style questions until next term.
I think the point is that Bush could potentially be in the position of appointing the Justice who would break the tie. So he could in theory end up choosing the Justice who gets to decide whether or not he wins the election.
No decision that needs to be made about the election will be held up for the time to allow an appointment and Senate vote. If needs be, eight justices will vote and a tie will uphold the lower court. If there is a true constitutional issue that involves precedent - the 2000 decision stated that it did not - then it can be decided at a later time, assuming that an appeal can be made.
There may be controversy, but there is no issue.