WASHINGTON – Chief Justice William H. Rehnquist, who remains hospitalized after surgery related to thyroid cancer over the weekend, may be sicker than Supreme Court officials are willing to admit, several medical experts told Knight Ridder on Monday.

His illness, announced just a week before the presidential election, raises questions about how quickly a new president could put his imprint on the court.

Three justices – including Rehnquist – are the constant subjects of retirement speculation and rumors, but none of them, before now, have had the imminent potential for a looming medical issue that could force them from their lifetime appointments.

“It certainly puts the court in more focus,” said David Garrow, a court historian and author. “It adds urgency to the idea that the next president is likely to appoint the next chief justice.”

Rehnquist was hospitalized Friday, according to a court statement, and had a tracheotomy – a procedure in which a hole is cut in the windpipe to ease breathing and talking – on Saturday in connection with what was described as a recent diagnosis of thyroid cancer. Court officials said he should be released this week and was expected back on the bench next Monday, when court hearings would resume.

But four of the nation’s leading experts on thyroid cancer said Monday that a tracheotomy was very unusual in these circumstances and removal of the thyroid, which makes hormones that regulate the body’s metabolism and growth, was the usual procedure. Court officials didn’t say Rehnquist had that operation, and they refused to discuss Monday whether he might have it.

That doesn’t bode well for the chief justice, the experts said.

“You try not to have a tracheotomy, ever,” said Kenneth Ain, a thyroid-cancer researcher and professor of medicine at the University of Kentucky.

When Dr. Paul Ladenson, the director of Johns Hopkins University’s thyroid tumor center, first heard about the chief justice’s cancer, he told people that thyroid cancer was eminently survivable, he said. But when he heard about the tracheotomy, his viewpoint got bleaker.

“The more I learned the more I’m concerned that the treatment of this tumor may be a challenge,” Ladenson told Knight Ridder.

Rehnquist’s age – he turned 80 on Oct. 1 – also complicates matters.

“In the elderly, above 65, above 70, 75, you get larger tumors and more rapidly growing tumors,” said Nicholas Sarlis, associate professor of medicine at the M.D. Anderson Cancer Center in Houston and a former top National Institutes of Health thyroid cancer researcher. “Those are the hardest to stop.”

News of Rehnquist’s illness refocused attention on the Supreme Court, which has been an off-and-on issue in the presidential campaign.

President Bush and Sen. John Kerry have talked about the kinds of justices they’d appoint, and highlighted the differences between them. Bush admires Justices Clarence Thomas and Antonin Scalia – the court’s most conservative members – for what he calls their strict adherence to original constitutional principles.

Kerry has been less specific about individuals, but has said he’d appoint justices who will respect the rule of law and protect Roe v. Wade, the 1973 ruling that legalized abortion.

Neither campaign had much to say about Rehnquist’s condition Monday beyond wishing him well.

If Rehnquist retires or is forced from the bench by his illness, it would be a historic opportunity for the next president. The chief justice has more ability – but not an unlimited one – to set the court’s agenda, and assigns justices to write opinions, a crucial role in shaping the court’s views on the law.

The next president could choose from among the other justices to replace Rehnquist or, more likely, appoint someone else. If the next president appoints someone young enough, he or she could shape the court for the next three decades.

“This is something that should already be in voters’ minds,” said Robert Percival, a University of Maryland law professor. “But Rehnquist’s illness points up how important it is.”

Percival said that if Rehnquist were to be forced from the bench after the election, but before Inauguration Day, it could inspire a colossal political fight, depending on the election’s outcome.

“If Kerry wins, the Democrats would want to stop Bush from appointing someone before he left office,” Percival said. That would draw a parallel to the situation in 1968, when a lame duck President Lyndon Johnson tried mightily to elevate Justice Abe Fortas to chief justice, to replace the retiring Earl Warren, before Richard Nixon took office in January 1969.

Fortas’ nomination stalled in a Senate that was nonetheless controlled by Democrats.

Percival said that no matter who won the election, the president would want to get a new chief justice quickly.

“With that seat open, you have the possibility of 4-4 votes on important issues, which results in no decision from the high court,” Percival said.

Rehnquist has been chief justice since 1986, when President Reagan elevated him from a seat that President Nixon gave him in 1972. Rehnquist as a new justice was the court’s most conservative member, and the author of scathing, often lone dissents against the then-liberal majority’s decisions.

As he’s been surrounded by more conservative appointees, Rehnquist has become less an outsider and more the core of a new, more conservative court.

The court under his leadership has been distinguished by a line of important cases limiting federal power over states and another scaling back prisoners’ rights to federal appeals.

He’s been pivotal in court rulings expanding the use of public money for religious schooling and the court’s controversial 2000 ruling settling the presidential election in Bush v. Gore.

In recent years, his influence has waned, as court majorities have upheld affirmative action, expanded gay rights, asserted the rights of terrorism suspects and strengthened federal powers.



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