Chicago Tribune

WASHINGTON – Chief Justice William Rehnquist might be next. Or will he?

Seemingly frail from his struggle with thyroid cancer, the chief justice defied expectations in the past week by not announcing his retirement. Instead, Justice Sandra Day O’Connor turned out to be the retiree who caused an explosion of Washington political buzz.

But Rehnquist is still considered a good candidate for retirement because of his poor health, possibly giving President Bush the rare opportunity of naming two Supreme Court justices at about the same time.

But some analysts say that if Rehnquist waits much longer, there is less of a likelihood that he will resign.

“I would doubt it at this point,” said Scott Moss, a law professor and Supreme Court expert at Marquette University. “If a justice is going to retire, he probably isn’t going to wait until midway through the summer,” because that would mean a successor might not be confirmed in time for the court’s new term in October.

The 80-year-old chief justice has shown grit in his post, showing up on a cold January Inauguration Day to swear in Bush to a second term despite being treated for cancer.

Susan Low Bloch, a law professor at Georgetown University, said she had thought that Rehnquist might have announced his resignation this week. “But now I don’t know what I think,” she added. “Now, I sort of think he may wait.”

She said she’d heard that Rehnquist “doesn’t want to get off” the court while O’Connor “did want to get off,” adding that, “I just know he loves the court and has all his life. Once his wife died, that became everything to him.”

Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee that will consider Supreme Court nominees, weighed in on whether Rehnquist would retire.

“Speaking as someone who likes to get up in the morning with something important to do, I wouldn’t say it’s keeping the chief justice alive, but I think he likes his job,” Specter told reporters on Capitol Hill. “And if we haven’t heard from him by now, the chances are you won’t hear from him for some time.”

Still, observers noted that Rehnquist looked especially weak at the end of the current term.

“I still expect Rehnquist to resign soon, after a decent interval allowing discussion of O’Connor’s legacy,” said Thomas Mann, a Brookings Institution scholar. Some believe this could happen as early as next week.

If Bush has the chance to name two justices, said Mann, he could “couple a strong conservative with a more ambiguous, uncertain appointee. This might avoid a rancorous battle, which he doesn’t need now given his weakened political position.”

But if the Senate does have to consider two Supreme Court vacancies at the same time, it is almost certain to make for a bitter, stormy autumn.

Rehnquist, initially named to the court by President Richard Nixon and elevated to chief justice by President Ronald Reagan, has long been a conservative mainstay on the high court.

But, said Bloch, he is by no means as conservative as Justices Antonin Scalia and Clarence Thomas, and if he should retire, Bush could conceivably choose two justices that would align themselves more regularly with Scalia and Thomas.

In today’s political climate, said Bloch, it is much harder to nominate a justice who has not firmly settled into one philosophical camp or another. When Reagan named O’Connor to the court, she said, the justice’s legal background on issues was not as clear-cut.

“It won’t happen again,” Bloch said. “The president will pick someone whose views are more known.”

But analysts said that if Bush has the chance to name two justices and picks two archconservatives, it could set off a titanic battle in the Senate over their confirmation. Already, a major political fight is expected when O’Connor’s replacement is named.

The speculation about court retirements began when Rehnquist developed an aggressive form of throat cancer in late 2004. He underwent treatment, missing a number of oral arguments in late 2004 and early 2005, but returned to the bench on March 21. During his absence, he participated in deliberations and decisions of the court.

No one knows what the chief justice will do, but Moss said, “there’s a long tradition of justices trying to stick it out” even when they are extremely ill.

Even if Rehnquist sticks with the job, his health will always be a matter of speculation as to how much longer he can continue to work.

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