If the retirement of Justice Sandra Day O'Connor opened a gap at the ideological center of the Supreme Court, the death of Chief Justice William H. Rehnquist removed the anchor of its right wing.
Yet in what is suddenly a much more complex process of replacing not only O'Connor but also Rehnquist, President Bush has an opportunity to shore up the court's conservative bloc and entrench it.
Rehnquist's replacement will probably serve for many years to come; if the new justice's views remain conservative over that time, it will mean the effective perpetuation of a Rehnquist-like vote on the court long after Bush is gone.
"Even if you appoint someone who is identical to Rehnquist in every respect, you're talking about someone who is about 50 rather than 80," said Richard Lazarus, who directs the Supreme Court Institute at Georgetown University Law Center.
Bush must also be sensitive to the fact that replacing a chief justice is not quite the same as replacing an associate. The titular head of the federal judiciary needs to be temperamentally suited to organizing the strong-minded jurists who sit with him on the Supreme Court and on lower courts.
"The next chief justice, whether chosen from within or outside the court, has a very high mark to follow," said A.E. Dick Howard, a professor of law at the University of Virginia. "Ideology aside, it's going to be difficult to run the court any better than he did," referring to Rehnquist. "We will look back on the Rehnquist court as one of the smoothest in the court's history."
And the president must fill the void quickly to minimize the disruptions to the judicial process that can occur when the Supreme Court is short-handed.
Unlike the departure of O'Connor, who often voted with Rehnquist and other conservatives on the court but who defected on social issues, the death of Rehnquist means the loss of an unequivocally conservative vote -- and voice -- on the court.
Of the justices remaining, only two, Antonin Scalia and Clarence Thomas, can be called sure votes to overturn Roe v. Wade , should a direct challenge to that abortion rights ruling come before the court. Only Scalia, Thomas and Anthony M. Kennedy are firmly opposed to affirmative action.
Almost all of those mentioned as likely successors to Rehnquist would probably vote as he has.
The one exception could be Attorney General Alberto R. Gonzales. His record suggests he could be slightly to Rehnquist's left on issues such as affirmative action, which he has supported in public statements, and Roe , which he cited as valid precedent while a justice of the Texas Supreme Court.
He could be to the right of Rehnquist on issues relating to anti-terrorism efforts; Rehnquist voted against the Bush administration's policy of denying court hearings to prisoners at Guantanamo Bay, Cuba, which Gonzales supported.
The Making of a Chief Justice
