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Forces poised over court

THE BALTIMORE SUN

The first ad is already on the airwaves, featuring an image of the Supreme Court building's marble columns, a group photo of the current justices and an announcer's booming warning: "Democrats will attack anyone the president nominates."

Part of one conservative group's $700,000 "Get Ready" campaign, the ad is just a hint of the fury that will follow if, as widely anticipated, the close of the Supreme Court's current term is capped by a retirement announcement from one of the justices - possibly as early as tomorrow.

Already, battle lines are forming over what would be the first opening on the nation's highest court in 11 years and what is expected to be the most bruising fight over a Supreme Court nominee since the bitter confirmation hearings for Clarence Thomas in 1991 or Robert Bork in 1987.

Senate Democrats sent a letter to President Bush last week urging him to consult with them on any nominees to the Supreme Court to avoid the kind of confrontation that marred some of his choices for lower courts. Advocacy groups on the left and right are primed with phone banks, e-mails, research on potential nominees and plenty of cash.

"We have to effectively use all these various tools to make sure we get our message out," said Brian McCabe, president of Progress for America, the conservative advocacy group behind last week's ad launch that sought to frame the confirmation fight before Democrats have a chance.

Progress for America has said it will spend $18 million to support whomever Bush nominates to the court; liberal advocacy organizations could easily match that. Then again, they might have to hold their fire.

For all the preparations and speculation about an imminent vacancy, there has been not a word from the man at the center of the frenzy about his intentions. Since he announced last fall that he was undergoing treatment for thyroid cancer, much of the discussion surrounding Chief Justice William H. Rehnquist has been when he would retire, not whether.

But Rehnquist, 80, has given no public clues about his plans, and a number of lawyers, scholars and court analysts have said in recent weeks that the court could finish its work for the year without announcing any changes to the bench - or with a departure from another of the court's most senior justices, Sandra Day O'Connor.

"There is a very powerful view within the court that you always act in a way that maximizes the chance of a full court," David Garrow, an Emory University law professor and court historian, said last week. "If [Rehnquist] had any serious present doubt about his ability to remain on the bench in October, he would have announced by now he is retiring."

Narrow window

The timetable to appoint a new justice is narrow. Any nomination by the White House would require Senate confirmation. With the Senate gone next week for the July 4 holiday and all of August for its summer recess, that effectively leaves four weeks in September to confirm a new justice in time for the start of the court's next term on Oct. 3.

Rehnquist was absent from the bench for five months this year after he underwent a tracheotomy operation and then treatments of radiation and chemotherapy for thyroid cancer. He has released no other details about his illness, but he has appeared steadily stronger since returning to the bench in March. He has presided over all of the court's public sessions.

"If he doesn't step aside, then the interesting question is, 'How come?'" said David Atkinson, a political science professor at the University of Missouri-Kansas City who has written about Supreme Court departures.

One possibility is that Rehnquist would assess his health over the summer and then decide whether to stay or step down, Atkinson said. Or the chief justice might already have been told by his doctors that he can continue to serve.

"A number of us had occasion to have lunch with members of the Supreme Court last week, and the chief justice looked remarkably fit," said Pennsylvania Sen. Arlen Specter, the Republican chairman of the Senate Judiciary Committee. "We saw him when he administered the oath to the president some five months ago, when he was helped down to the podium, a little shaky and his voice a little faltering, but last Thursday, he looked remarkably well.

"What he intends to do, or what anyone else intends to do, remains to be seen," Specter said.

That has not slowed speculation. The conservative commentator William Kristol, who was chief of staff to former Vice President Dan Quayle and is now editor of the political magazine The Weekly Standard, suggested in an online essay last week that Rehnquist would not retire, but 75-year-old O'Connor might - and could already have signaled her plans to the chief justice.

"Rehnquist probably believes that it wouldn't be good for the court to have two resignations at once, so he would presumably stay on for as long as his health permits, and/or until after Justice O'Connor's replacement is confirmed," Kristol wrote.

An O'Connor departure would prompt a fiercer fight than a Rehnquist retirement, court analysts say, because any replacement likely would mean a greater shift to the right for the high court. O'Connor is a moderate among the court's conservative majority, and she often provides the deciding vote in the court's many 5-4 rulings.

Her vote is viewed as critical for upholding abortion rights, for instance, and in recent years she has expressed concerns about the fairness of the death penalty.

"Everyone will be waiting and watching on Monday to see what happens," said Nan Aron, president of the liberal advocacy group Alliance for Justice and a veteran of Supreme Court nomination battles. "It's interesting because it's not just organizations - I really think the nation will be watching. I don't go anywhere that people don't mention it."

Last day of term

Tomorrow is the court's last day for the term. It is expected to issue decisions in six remaining cases, including two involving displays of the Ten Commandments on government property. The last day of the term has often been a day for retirement announcements. But not always.

The two most recent departures, which both came during President Bill Clinton's first administration, were announced well before the end of the court term. By the time the court was finishing its work in 1993 and 1994, nominees Ruth Bader Ginsburg and Stephen G. Breyer had already been named.

The last chief justice departure was in 1986, when Warren E. Burger announced his retirement in mid-June, a few weeks before the court's early July finish. Burger gave the White House notice of his plans, and on the day he made his retirement announcement, President Ronald Reagan said he would nominate Rehnquist to fill the chief justice post and Antonin Scalia to fill the associate justice post that would be vacated by Rehnquist's elevation.

Other justices in recent history have used the court's last day to announce their retirement plans, including Justice Lewis F. Powell in 1987 and Thurgood Marshall in 1991. In each instance, the White House named its nominee - Anthony M. Kennedy in 1987 and Thomas in 1991 - within days.

When Justice William J. Brennan stepped down in 1990, he made his retirement announcement roughly three weeks after the court's term ended. Then-President George H.W. Bush nominated David H. Souter to fill the post two days later.

The current President Bush has closely held his plans for any court vacancy. A relatively consistent list of high court contenders has circulated each spring for the past four years, a roster of well-credentialed, staunchly conservative federal appeals court judges.

Attorney General Alberto R. Gonzales, who previously served as White House counsel and has worked closely with the president since he was the Texas governor, also has been consistently mentioned as a top candidate for the job. His appointment would allow Bush to name the first Hispanic justice to the high court.

But the White House has repeatedly shut down any public talk about its preparations to fill a post that, for now, is not open.

"There's no vacancy that I'm aware of at this point, and so I'm not going to get into talking about a vacancy that does not exist," White House spokesman Scott McClellan said against last week's growing drumbeat.

"I did say the other day that, like any White House, we obviously have been making preparations in case there is a vacancy. But that goes back over the last few years, and beyond that, I'm just not going to get into talking about a vacancy that doesn't exist."

The administration's reticence could end up looking prescient if the no-vacancy sign remains. Said Emory University's Garrow: "My guess is there's going to be scores and scores of embarrassed journalists, and many, many angry interest groups."

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