The news that Chief Justice William H. Rehnquist has thyroid cancer was the first concrete indication that oft-repeated predictions of change at the Supreme Court may come true, but it challenged a common assumption: that any transition would take place on a schedule set by one or more justices.
The most orderly succession would begin with a retirement at the end of a court term in June, followed by confirmation of a new justice and the resumption of business as usual by a full bench of nine the first Monday in October. That is what happened with the last two vacancies, in 1993 and 1994.
The current Supreme Court posed for a group photo in December 2003. Seated, from left, are Antonin Scalia, John Paul Stevens, Chief Justice William H. Rehnquist, Sandra Day O'Connor and Anthony M. Kennedy. Standing, from left: Ruth Bader Ginsburg, David H. Souter, Clarence Thomas and Stephen G. Breyer.
(John Mcdonnell -- The Washington Post)
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Now, however, the chief justice's future hinges on the unpredictable course of a serious disease. And previously unmentionable possibilities -- that Rehnquist, 80, might die in office, remain on the court in a weakened state or be obliged to retire in mid-term -- no longer seem so remote.
The prospect of a shorthanded or otherwise disrupted court cannot be ruled out, especially if the confirmation battle over a successor turns as ugly as the last four years of Senate fights over appeals court nominees have been.
The chief justice left the National Naval Medical Center in Bethesda yesterday and plans to return to the bench on Monday. When the court refused to put Ralph Nader on the Ohio ballot Tuesday, Rehnquist participated in the decision.
Yet if Rehnquist's health deteriorates rapidly, "that kind of orderly scheduling isn't going to happen," said David N. Atkinson, a professor of political science and law at the University of Missouri at Kansas City who has studied Supreme Court transitions. "When events happen on a short timetable, the unexpected can happen in Supreme Court history."
If Rehnquist's position were to become vacant before Jan. 20, when the next presidential term begins, President Bush would have the authority to nominate a successor whether or not he is reelected on Tuesday. White House aides have a full list of Supreme Court candidates vetted and ready to go, though it has not yet been narrowed down to one or two finalists, former Bush administration officials who took part in the process said.
If the Senate were not in session, Bush could fill the seat through a recess appointment. That justice would remain on the bench until the end of the next Senate session -- unless, upon its return from recess, the Senate confirms or rejects the Bush nominee or, if Kerry becomes president, confirms someone else.
Bush has used recess appointments to put judges Charles W. Pickering Sr. and William H. Pryor Jr. on the federal appeals court. Two of the Supreme Court's most distinguished members, Chief Justice Earl Warren and Justice William J. Brennan Jr., were recess appointees, installed by President Dwight D. Eisenhower after their predecessors' deaths and confirmed by acclamation when the Senate returned.
NARAL Pro-Choice America, an abortion rights group that closely follows court nominations, has e-mailed supporters to warn of a "November Surprise": Rehnquist would step down and Bush would replace him with a recess appointee rather than let an eight-member court rule -- and possibly split 4 to 4 -- on an election dispute.
The White House dismissed the e-mail, which was based on an anonymously sourced item that appeared on U.S. News & World Report's Web site.
"The president's thoughts and prayers are with the chief justice, and he wishes him a speedy recovery," White House spokeswoman Claire Buchan said. "We won't speculate on anything other than that."
Republicans knowledgeable about the administration doubt that Bush would attempt a recess appointment if he is reelected. They said that he resorted to recess appointments for appeals judges only after he tried the normal route and was thwarted by Democratic filibusters.
"A recess appointment would generate enormous ill will on the Hill, which would cost votes on the floor later on," said Bradford Berenson, a former associate White House counsel who worked on judicial nominations.
