By William Branigin
Washington Post Staff Writer
Sunday, September 4, 2005 2:34 PM
President Bush said today the death of Chief Justice William H. Rehnquist "represents a great loss" for the Supreme Court and for the nation, and he vowed to choose a "highly qualified" replacement promptly.
In a brief televised speech from the Roosevelt Room of the White House, Bush hailed Rehnquist, who died of thyroid cancer Saturday night at the age of 80, for "his deep commitment to the rule of law and his profound devotion to duty." Even as he battled his illness, Rehnquist insisted on completing the Supreme Court's session, Bush recalled.
He said he was "honored and deeply touched" when Rehnquist, walking with the aid of a cane and visibly ailing, came to the Capitol in January to administer the oath of office to the newly reelected president as he began his second term.
Rehnquist "was extremely well-respected for his powerful intellect," Bush said. "He was a man of character and dedication. His departure represents a great loss for the court and for our country."
With the flag flying at half-staff over the White House in honor of Rehnquist, Bush noted that the chief justice's death creates the second opening on the Supreme Court, following the retirement announcement in July of Justice Sandra Day O'Connor.
"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. "I will choose in a timely manner a highly qualified nominee to succeed Chief Justice Rehnquist."
Bush did not mention Senate confirmation hearings scheduled to begin Tuesday on his nomination of federal appeals court judge John G. Roberts Jr. to replace O'Connor, and he left the room without taking any questions from reporters. Even as he spoke, some lawmakers were beginning to discuss whether a delay in Roberts's confirmation might be called for.
On ABC's "This Week" program, Sen. Orrin Hatch (R-Utah), a member of the Senate Judiciary Committee, rejected the idea of a "timeout" in view of the rare double vacancy.
"No, no. I think we have to proceed with the hearings, but we'll have to see. We'll have to see what the president decides to do here," Hatch said. "You know, there are a lot of factors that might enter into -- that could cause a delay, but I don't think so. I think we need to proceed with John Roberts and move right ahead." He said he saw no reason that the hearings could not go ahead "even if the president nominates [Roberts] for chief justice."
But Sen. Charles Schumer (D-N.Y.), a Judiciary Committee Democrat appearing on the same program, disagreed.
"No, I think, you know, we can take a few days out to mourn Justice Rehnquist," Schumer said. "He was a towering figure in the judiciary....... Judge Roberts was his law clerk, and Judge Rehnquist was Judge Roberts's mentor."
Schumer added, "I think it makes a good deal of sense for us to take time, catch our breath and take a few days out. I think that's what Senator Frist and Senator Specter are now considering, and I hope they will, because it makes sense." He referred to Sen. Bill Frist (R-Tenn.), the Senate majority leader, and Sen. Arlen Specter (R-Pa.), the chairman of the Judiciary Committee, which is charged with holding confirmation hearings on judicial nominees.
Sen. Edward M. Kennedy (D-Mass.), another Judiciary Committee member, said in a statement that Bush should concentrate on relief efforts in the aftermath of Hurricane Katrina. "With Justice O'Connor committing to stay until her replacement is named, we can and should remain focused first on protecting our citizens who need help the most," Kennedy said. He said Rehnquist "served this country with the greatest distinction, and I respected his leadership of the federal judiciary and his strong commitment to the integrity and independence of the courts."
Bush has said he wants Roberts to be confirmed before the Supreme Court begins its new session Oct. 3. But it is considered unlikely that a new chief justice could also be confirmed by then. In the event that the Supreme Court started the session with only eight of its nine members in place and deadlocked 4-4 on a case, the lower-court ruling in the case would stand.
Amid the questions on whether to proceed as scheduled with the Roberts confirmation hearings, tributes to Rehnquist came in today from a cross-section of the nation's political establishment.
"Chief Justice Rehnquist's death marks the passing of a great American," Specter said. "For more than three decades he left a deep imprint on American law. It has been a profound experience to know him personally."
Sen. Patrick Leahy (D-Vt.), the top Democrat on the Judiciary Committee, said, "One of the hallmarks of [Rehnquist's] tenure was his tenacious fight to preserve the integrity and independence of our federal courts." He said the chief justice's "commitment to the court and his passion for the law and for public service was extraordinary."
Rep. Nancy Pelosi (D-Calif.), the Democratic leader in the House of Representatives, praised Rehnquist as "a strong advocate for an independent judiciary, particularly in response to recent threats to impeach judges for their judicial decisions and to strip federal courts of jurisdiction."
Senate Majority Leader Frist said the chief justice "was an inspiration to me to be mindful of our duty to history and our place in preserving the strength of this great nation we serve."
Sen. John Cornyn (R-Tex.), a Judiciary Committee member who has occasionally been mentioned as a prospective Bush nominee to the high court, said, "Chief Justice Rehnquist restored sanity to our criminal justice system, respect for our nation's allocation of power between the states and the federal government, and freedom in the public square to people of faith."
The death of Rehnquist presented Bush with the opportunity to a fill two simultaneous vacancies on the Supreme Court for the first time in 34 years. The last time the court had two openings was in 1971, when Rehnquist was appointed by president Richard M. Nixon following the retirements of justices Hugo Black and John Marshall Harlan.
O'Connor said in her surprise retirement announcement July 1 that she would stay on until her successor is confirmed. On July 19, Bush nominated Roberts, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to replace O'Connor.
Much of the speculation on a successor to Rehnquist centered on the prospect that Bush might elevate a serving conservative justice to the post. His favorites on the court are said to be Antonin Scalia, 69, appointed in 1986 by President Ronald Reagan, and Clarence Thomas, 57, who was nominated by Bush's father, President George H.W. Bush, in 1991. Thomas, who went through a bruising confirmation fight, is the youngest member of the Supreme Court.
Choosing a serving justice would create the need for two additional Senate confirmations besides that of Roberts: one for the nominee to be chief justice and another for the eventual nominee to replace the elevated justice.
In any case, Bush is likely to come under pressure to name a woman or a Latino to the court. The retirement of O'Connor leaves Ruth Bader Ginsburg as the court's only female justice, and Americans ranging from leaders of women's organizations to first lady Laura Bush had publicly advocated replacing O'Connor with another woman. Latino groups, for their part, have said the high court needs a Hispanic justice in part to reflect the emergence of Latinos as the nation's largest minority.
Among the Latinos who have been prominently mentioned as possible Bush choices is Attorney General Alberto R. Gonzales, a Bush confidant who formerly served as White House counsel and who was named to the Texas Supreme Court by Bush when he was governor. Other names that have surfaced are those of appeals court judges Emilio Garza, Jose Alberto Cabranes, Julio Fuentes and Sonia Sotomayor.
As Bush was considering his choice to replace O'Connor, he interviewed Edith B. Clement, a judge on the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, and she was touted for a time as the front-runner.
Also reportedly considered strongly for the O'Connor vacancy was J. Michael Luttig, a conservative judge on the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Va.
Another possibility making the rounds today involved asking O'Connor to stay on the court and elevating her to chief justice, at least temporarily.
"I think it would be a great idea for President Bush to ask Justice O'Connor to stay on as chief justice for, say, a year," Sen. Schumer said on ABC. "She is respected by all sides. At a time when the nation needs unity and stability more than ever, she would bring it, and it would be a breathtaking choice. And then we could proceed with the nomination of Judge Roberts for associate judge." He said such a move "would be a huge, huge step to unity in this country, particularly on the judiciary, which has been such a divisive issue."
Hatch demurred, saying it was "not that Justice O'Connor wouldn't be a great choice," but that her husband is seriously ill. "And that's one reason why she's leaving the bench, and I don't think the president should call on her to do that," Hatch said. O'Connor's husband, John Jay O'Connor III, reportedly suffers from Alzheimer's disease.
"On the other hand," Hatch said, Bush "has to make these decisions. And the longer he waits, the more difficult it's going to be to get anybody through. And so it's better to face the music now, make the determinations that have to be made."