Only Vacancy Is in Supreme Court News

By Dana Milbank
Thursday, June 30, 2005

This was to have been the busiest week of Sean Rushton's life. As director of the Committee for Justice, he was to have kicked off the right's fight for a conservative successor to Chief Justice William H. Rehnquist.

But Rushton is standing down. He told his wife to go ahead with a deposit on the beach house in the Outer Banks. He sent his assistant off on a professional development conference. He's catching up on his e-mail. "Lot of solitaire, lot of tick-tack-toe," Rushton said yesterday from his quiet Pennsylvania Avenue office after circulating a news release calling a Supreme Court retirement "less likely" and suggesting that the right concentrate on lower courts.

How could this be? Yesterday was the day Rehnquist was absolutely, positively to have announced his retirement -- a fact made all the more certain by his not doing so on Monday or Tuesday. Journalists knew it. Administration sources knew it. The White House and scores of interest groups were preparing for it. The only one who didn't know Rehnquist was retiring, apparently, was Rehnquist himself.

The cagey chief justice, who has thyroid cancer, may yet announce his retirement at any moment. But with each passing hour, the doubts grow. Since Monday, the capital's conventional wisdom has executed a perfect 180, and the smart money now says Rehnquist (and Sandra Day O'Connor and the others) won't resign. But since nobody seems to know for certain except for Rehnquist, the wait continues. Instead of beginning an apocalyptic confirmation battle, Washington this week resembles a Samuel Beckett play.

"It's hell," said NBC News's Pete Williams, sitting in his cubicle in the Supreme Court press room -- waiting. Outside, at the bottom of the court steps, an NBC camera crew languishes as it has all week -- waiting, eating Doritos, reading the paper, talking to tourists. "You can't do a story saying nothing happened," Williams pointed out.

The court is now out of session, but the Supreme Court press room is still buzzing with reporters catching up on their reading and sticking around -- just in case. "It doesn't make sense not to be here," said Lyle Denniston, an experienced court watcher who writes for SCOTUSblog. But he's growing increasingly doubtful. "With every passing hour, it becomes clearer and clearer that nothing is going to happen," he said.

The Rehnquist rumors weren't without basis. When limited information about his cancer emerged last fall, medical experts surmised that he had about six months to live. That was nine months ago. "It's very bizarre," Denniston said. "He's showing up for work. He's running the place."

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), who is himself battling Hodgkin's disease, speculated to reporters yesterday that "the chief justice is not going to leave, because I think that every day he goes to work knowing he has very important work to do."

Also in that school is Justice Clarence Thomas, who used an appearance in Georgia on Tuesday to bemoan "imagined resignations," according to an account in the Fulton County Daily Report.

But the speculation will not die. After the daily drumbeat of Rehnquist guessing, Weekly Standard Editor Bill Kristol raised the gossip to a new level last week when he wrote of "somewhat well-informed speculation" that O'Connor would announce her retirement within a week. On Monday morning, reporters at a White House briefing asked whether President Bush had been notified of a vacancy. "I'm not going to go down that road," press secretary Scott McClellan said. "I wouldn't read anything into that one way or the other."

ABC News correspondent Terry Moran replied, "I'm inclined to read something into this," and others quickly agreed.

As the Supreme Court wrapped up its term Monday and Tuesday, the wire services issued bulletins with a Franco-is-still-dead quality. "Rehnquist Doesn't Announce Retirement From Bench," wrote Dow Jones.

But that did nothing to quell the flow of rumors reporters presented to the Senate Judiciary Committee: that a light White House schedule meant the retirement would be announced yesterday; that a White House meeting today means it will come then; that Bush had hastily arranged a conference call with senators; that Rehnquist is waiting for the court session's formal end tomorrow. "It's definitely occupying everybody's time and attention," said Tracy Schmaler, spokeswoman for the panel's Democrats.

As the conventional wisdom comes to doubt a court vacancy, photographers have ended their vigil outside Rehnquist's townhouse in Arlington. The curtains are drawn, the door is shut, the grass needs watering, and a Subaru sits out front; the only signs of activity are the birds singing out back.

Over at the Committee for Justice, Rushton is still fielding calls and e-mails from reporters saying Rehnquist's retirement will definitely come today. Or maybe tomorrow. But Rushton doesn't believe it. "It makes no sense to announce at this late date," he said. "The groups that we're working with are now moving on." But as he leads a visitor to the elevator, he pauses for a moment of doubt. "I hope," he said, "that we're not all going out on a limb and tomorrow morning there's a vacancy."


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