September 5, 2005 in Nation/World

Simultaneous vacancies give Bush rare chance to remake high court

Steven Thomma and Stephen Henderson Knight Ridder

WASHINGTON – President Bush on Sunday said he’d move quickly to nominate a new chief justice of the Supreme Court, the first time in nearly two decades that a president has had a chance to remake the court with both a new chief and a new associate justice.

“There are now two vacancies on the Supreme Court and it will serve the best interests of the nation to fill those vacancies promptly,” Bush said Sunday. “I will choose in a timely manner a highly qualified nominee to succeed Chief Justice Rehnquist.”

Rehnquist served on the court for 33 years and led it as chief for the last 19 years. Flags flew at half-staff, and court aides were prepared to drape his empty seat in black if a successor hasn’t been confirmed when the court convenes for its fall term in four weeks.

Members of the public will be allowed to pay their respects when Rehnquist’s body lies in repose at the Supreme Court on Tuesday and Wednesday. Rehnquist will be buried in a private ceremony later Wednesday at Arlington National Cemetery after services at St. Matthew’s Cathedral in Washington.

Rehnquist’s death sets off a complex game of political and legal chess for Bush and Senate Democrats and Republicans as they face the prospect of two confirmation battles.

The Senate Judiciary Committee on Tuesday is scheduled to begin hearings on the nomination of Roberts to take the seat of Justice Sandra Day O’Connor, who’s retiring.

Bush gave no hint of whom he might pick to replace Rehnquist. He had three possible approaches.

He could pick someone from outside the court. He could nominate a sitting associate justice such as Antonin Scalia to the top job, then nominate someone else to take Scalia’s seat. Or he could nominate as chief justice the man awaiting confirmation as an associate justice, John Roberts, and then pick someone else to take O’Connor’s seat.

Each possibility has political overtones. Bush, for example, could appoint the first Hispanic to the court. He also could name a woman, which would keep the current composition of seven men and two women.

Bush is certain to pick a conservative to replace the conservative Rehnquist. But his loss of political clout – his approval ratings dropped to the lowest of his presidency before the hurricane disaster – gives him less muscle to get a combative or controversial nominee through the Senate.

“How many different difficult scenarios can he manage at once?” asked Carl Tobias, a law professor at the University of Richmond. “Does the president want an enormous fight over the courts at this juncture in history?”

Democrats urged a delay.

“Out of respect for the memory of Chief Justice Rehnquist and in fairness to those whose lives continue to be devastated by Katrina, the Senate should not commence a Supreme Court confirmation hearing this Tuesday,” said Senate Minority Leader Harry Reid, D-Nev. “A brief postponement will not disadvantage anyone.”

Though Roberts is well on his way to confirmation, Bush could feel obliged to fill the chief justice’s seat first.

While the chief has only one vote like all other justices, he or she also is responsible for marshaling other justices to cut efficiently through the court’s docket, assigning justices to write opinions in cases in which he’s in the majority, and managing the entire federal court system as its administrative head.

In the interim, Associate Justice John Paul Stevens, the senior associate, will take over administrative duties but will not assume the leadership of the court.

Bush starts the search with a list of some potential nominees.

Weeks ago, in the process that produced Roberts’ nomination, he examined detailed background reports on 11 potential nominees and interviewed five finalists, including Roberts.

Two of the other finalists interviewed for O’Connor’s seat were U.S. Appeals Court Judge Edith Clement of New Orleans and Appeals Court Judge J. Harvie Wilkinson III of Richmond, Va., according to friends and associates. The list of those considered for O’Connor’s seat is the likely starting point for the new search, though it could change for a chief justice. Bush, for example, could also consider nominating a sitting justice such as Scalia, 69, as an interim choice. But Bush was more likely to look for a young person who could lead the court for many years.

Washington insiders Sunday focused their first wave of speculation on Roberts.

He’s young (50), popular among conservatives, and already appears headed toward easy confirmation in the Senate as an associate justice. Nominating him to the top job could get a chief into the court in time for the October start of a new term. Getting another associate justice named and confirmed could come later.

“We’ve gone through Roberts, almost 75,000 documents and pages,” said Sen. Orrin Hatch, R-Utah, a top Republican on the Senate Judiciary Committee. “We know about as much about Roberts as we have anybody in history, and I don’t see any reason why we couldn’t go ahead, even if the president nominates him for chief justice.”

“He’s certainly a highly qualified nominee and try as some folk have done they haven’t been able to find any real objections to him,” said Sen. John Cornyn, R-Texas, also a member of the Judiciary Committee who has himself been mentioned as a possible court pick.

But he added that Bush certainly knew when he picked Roberts that the Rehnquist seat was likely to become vacant soon.

“Knowing that, why would they go ahead and nominate him to the O’Connor spot? Maybe they’ve got a scenario where they’ve already got somebody chosen for the chief spot when that vacancy occurs.”

Another possible, albeit unlikely, choice would be O’Connor. That would allow Bush to name the first woman as chief justice, even if she only held the job for a year or two before retiring again.

Hatch, however, noted that O’Connor decided to retire in large part to spend more time with her ailing husband, a fact that hasn’t changed.

O’Connor’s departure will leave only one woman, Associate Justice Ruth Bader Ginsburg, on the nation’s highest court.

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