With word that Supreme Court Chief Justice William Rehnquist is suffering from thyroid cancer, speculation about the future of the high court kicked into high gear this week. What concerns me, however, are the lengths the Bush White House will go to take advantage of the opportunity, should Rehnquist no longer be able to serve.
Few outside Rehnquist’s inner circle know the full extent of his illness, but if he were to leave the high court before Inauguration Day 2005, Bush, even if he loses the election next week, would have the authority to nominate a new justice. What happens next would depend on a variety of potential outcomes next Tuesday.
* Bush wins next week, Republicans keep the Senate — They might as well move ahead with hearings for Bush’s nominee.
* Bush wins next week, Dems win the Senate — Republicans might try and rush ahead with Bush’s nominee before the next Congress is sworn in (while they still have the majority), but Dems would block any and all stunts.
* Kerry wins next week, Republicans keep the Senate — Again, Bush’s nominee would be quickly embraced by Senate Republicans before Kerry got sworn in, but Dems would block the process and Kerry might even announce his own nominee.
* Kerry wins next week, Dems win the Senate — The GOP might try to push a Bush nominee while they had the chance, but it wouldn’t go anywhere.
What if Rehnquist’s health forced him to leave the bench and the election ended up at the Supreme Court again? With eight justices, a 4-4 ruling would remain a distinct possibility and it would depend on the lower court’s ruling on the suit. Something to look forward to.
But, and here’s the scary part, there’s one other option the Bush White House is mulling over — a recess appointment.
As Amy Sullivan noted yesterday, a U.S. News & World Report item is circulating that indicates the Bush gang might try to circumvent the Senate altogether if Rehnquist were no longer able to serve.
Even though the U.S. Supreme Court has said Chief Justice William Rehnquist will return to the bench following cancer surgery, administration officials are quietly considering candidates to replace him and even the possibility of making a recess appointment. The officials said that they do not want to talk about the process publicly in the last week of the presidential campaign. However, one insider said that the West Wing is considering what would happen if the judge left the bench soon and if a close election next Tuesday meant an evenly split 4-4 court was to decide the winner. Such a situation would likely mean that a lower court’s ruling on an outcome would be final and officials are worried that it would go against the President.
If Bush were to pursue this, it would spark the most intense partisan fight imaginable. It’d make Clinton’s impeachment look like a tea party. Bush’s choice of justices, under recess appointment rules, would only be allowed to serve one year before having to be confirmed by the Senate, but he or she could do quite a bit of damage in that time, especially if the presidential race ended up before the high court.
Indeed, the fact that Bush aides are considering this approach and mentioning it to U.S. News highlights just how radical their approach to governing truly is.