Remember all those iron-clad rumors from Novak, Drudge, and others about William Rehnquist’s imminent retirement? They were all wrong.
Chief Justice William H. Rehnquist emphatically denied yesterday that he intends to step down from the Supreme Court in the near future, as he sought to halt a spiral of speculation about his possible retirement.
In a statement, Rehnquist, who is 80 and suffering from thyroid cancer, said flatly: “I am not about to announce my retirement.”
“I want to put to rest the speculation and unfounded rumors of my imminent retirement,” Rehnquist said. “I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits.”
From a political perspective, this is not altogether good news. In recent weeks, there’s been growing discussion in progressive circles that a double vacancy could allow the court’s current balance to remain largely in tact and help prevent an ugly Senate implosion over how to deal with the vacancies.
Indeed, Loyola Law School’s Richard Hasen had a very persuasive piece recently in The New Republic about how a double vacancy (O’Connor and Rehnquist) could help the left by way of the “West Wing” scenario.
In an episode of the television series last year, the fictitious President Bartlett had two Supreme Court seats to fill. Despite his own liberal leanings, he filled one seat with a more conservative candidate and one with a more liberal candidate. The ability to negotiate with two seats allowed both candidates to get through the Republican Senate.
The same logic would hold in the real world. If Bush had two seats to work with, he would likely nominate a conservative to one seat and a more moderate nominee to the other. Democrats probably would not block a deal that preserves the Court’s current balance of power. Indeed, preserving the status quo is about the best deal they can realistically hope for. For their part, conservatives would probably be happy with another Scalia or Thomas on the Court, even if that came at the price of a more moderate justice in the other seat.
If Bush instead picked two hardline conservatives to fill those seats, Democrats would have a stronger argument to make to the Republicans in the Gang of 14 that these would be “extraordinary circumstances” justifying a filibuster. Meanwhile, the public would probably favor maintaining the status quo on the Court, would view the Democrats’ filibuster as reasonable, and would therefore be unlikely to countenance the nuclear option. In short, a Rehnquist retirement opens up greater space for political compromise in a Senate that is currently short on trust.
That sounds right to me. Unfortunately, it’s not going to happen.
In fact, because Rehnquist will probably retire sometime before the end of Bush’s second term, the delay is actually bad news for those of us on the left. With a double vacancy now, we might get some balance. But in filling O’Connor’s seat now, with no guarantees of future vacancies, Bush is far less likely to go with a “consensus” choice. He’ll tap a far-right nominee now and another when Rehnquist steps down before 2008.
It makes the fight over O’Connor’s replacement all the more significant. And the chances for bitterness all the more likely.