GOP Plots Court Strategy With Rehnquist in Mind

By Peter Baker
Washington Post Staff Writer
Friday, July 8, 2005

A week after Justice Sandra Day O'Connor announced her retirement, the White House and its allies are preparing for the possibility that Chief Justice William H. Rehnquist might soon follow suit, opening up a second vacancy to fill and scrambling the politics of this summer's brewing nomination battle.

Talk of a possible Rehnquist retirement has reached full boil again as Republican strategists mapped out plans for how to tackle a double nomination. Advisers inside and outside the White House are discussing how to select two potential nominees, how they might match or balance each other and how to sequence their confirmation hearings.

"We're prepared for every contingency," said a senior administration official, who spoke on the condition of anonymity because Rehnquist has made no announcement. "If it's multiple candidates, we'll be ready."

If Rehnquist decides to step down, President Bush will have the opportunity to put a decisive personal stamp on a closely divided Supreme Court that has seen no turnover for the past 11 years. Such a scenario would almost certainly escalate the high-decibel, high-dollar political showdown both sides already expect.

Twin vacancies would present Bush with an intriguing choice: Does he use the opportunity to appoint two reliable conservatives who would shift the court away from what he sees as improper judicial activism on divisive issues such as abortion, religion in public life and gay rights? Or does he try to balance competing impulses by filling one seat with a conservative who would strictly interpret the Constitution and the other with his friend, Attorney General Alberto R. Gonzales, who is less favored by the right but would be the first Hispanic on the nation's highest court?

"If we get a second vacancy, then there's just a lot up for grabs," said Gary L. Bauer, a prominent Christian conservative leader who ran for president in 2000. "It would mean a tremendous battle."

For the moment, Rehnquist's intentions remain unclear. The chief justice has not informed the White House of his plans, according to administration officials, and predictions that he would retire at the end of the court's term last week proved unfounded, or at least premature.

Yet in the days since O'Connor surprised the capital with her announcement, speculation in Washington has grown that Rehnquist was merely waiting to let her go first. At age 80, Rehnquist is fighting thyroid cancer, and he missed months of oral arguments during the last term. Quoting unidentified court sources, columnist Robert D. Novak wrote yesterday that Rehnquist would retire by the end of the week. Others around the capital said they were calibrating strategies in the event he does.

Several officials and Republican strategists cautioned against presuming any quick retirement, figuring that Rehnquist would rather stay as long as physically possible and that he may resent feeling railroaded by public speculation about his future. But even if Rehnquist makes no immediate announcement, the White House and its political allies assume that the seat ultimately will open, meaning Bush can plan for two nominations eventually.

"I'm prepared if it happens tomorrow morning or two years from now," said Jay Sekulow, chief counsel of the American Center for Law and Justice, who has been advising the White House on court strategy. "You have to operate under the assumption right now that it's likely to happen."

Only twice in recent times has a president nominated two justices for the Supreme Court in tandem. In 1971, Richard M. Nixon filled the seats of John Marshall Harlan and Hugo Black with Rehnquist and Lewis F. Powell Jr. In 1986, Ronald Reagan elevated Rehnquist from associate justice to chief justice, succeeding Warren E. Burger, and named Antonin Scalia to fill Rehnquist's seat. Some Republican strategists point out that Bush could elevate Scalia to chief justice, leaving him with three opportunities to put his personal imprint on the court -- but also three confirmation battles to wage simultaneously.

"It would put a lot of pressure on the system if he retired now," said former White House counsel C. Boyden Gray, another key outside strategist aiding the White House. "God, it would make it an interesting summer. It's going to be interesting enough as it is."


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