Dozens of scholars, citizens and journalists will gather in a grand marble hall on Monday to watch a frail 80-year-old man for any sign of capitulation to age or ill health — aware that the looming battle to succeed him is likely to split the country in two.
It sounds like a scene from some bygone European monarchy. But the court in question is the United States supreme court, the gleaming white temple that sits alongside Congress on Washington’s Capitol Hill. And the ailing patriarch under scrutiny is William Rehnquist, the chief justice for the past 19 years, who rules over the court from its central reclining leather chair, his black robe striped in regal gold.
Every Monday morning, the great square chamber fills with a hushed and reverent crowd to hear the latest rulings handed down from what is probably the most powerful law court in the world. It makes literally life-and-death decisions about execution or abortion, stem cell research or guns — just about every issue that divides Americans.
But the crowd is also there in anticipation of a historic retirement announcement that will bring to an end the longest period of judicial stability since the 19th century and set Republican against Democrat, devout against secular, ”red” against ”blue” America.
The judicial death watch is primarily on Rehnquist, who has been struggling with thyroid cancer since last October, and barely had the strength in January to swear in George Bush for his second presidential term.
But the nine-judge bench contains other men and women long past normal retirement age. When the court is called to order, they file slowly through gaps in the heavy crimson and gold curtains like veteran actors on the brink of their last bow.
John Paul Stevens is 85. Sandra Day O’Connor is 75 and has privately talked about stepping down. When they give up their seats, the ensuing struggle will be even more intense, because it will give Bush the opportunity to replace a liberal and a centrist Republican, respectively, with a true conservative. In a court that has voted 5-4 on some of the most contentious issues in US society, such a change would represent an earthquake.
When Rehnquist steps down, the implications for that delicate balance are less immediate. One conservative will presumably be replaced by another. But if one of the judges on the far right of the bench, Antonin Scalia or Clarence Thomas, were to be promoted to the chief justice’s seat, the tone of the court would change. Where Rehnquist is courtly, the two radicals are aggressive. Scalia, in particular, is caustic about his fellow judges when they disagree with his worldview. And for an Italian-American Catholic, the question of abortion is urgent and central.
In his 33 years on the bench, first as associate justice, then as chief, Rehnquist has seen seven presidents come and go — long enough to accumulate a sense of independence — and his rulings have frequently been inconvenient for the White House.
When Bush chooses a new supreme court judge, either to replace Rehnquist directly or to take the place of whichever sitting justice is promoted to the top position, he will have the opportunity to choose a total loyalist.
The president, arguably, has no greater power in the domestic arena. His legislation can be overturned. The Cabinet secretaries, officials and ambassadors he hires will be shown the door as soon as he leaves office. But his judicial appointments will live on long after — making decisions that help define American daily life. One name frequently mentioned as a presidential pick is Michael Luttig, a Christian conservative currently sitting on a federal circuit court of appeals, who comes from the president’s home town, Midland, Texas.
Alternatively, Bush could use the occasion to make some history by opting for a Hispanic appointment, perhaps by appointing a conservative such as Miguel Estrada, Emilio Garza or the current attorney general, Alberto Gonzales.
The choice of a minority moderate conservative would speed the confirmation process in the Senate, splitting the Democratic opposition. Anyone else is likely to trigger a pitched battle.
For the political activist groups who serve as the pistons in any presidential campaign, the supreme court is the grand prize. Organisations such as the conservative Committee for Justice and the liberal People for the American Way have been marshalling their money and troops for the big battle. Such grassroots groups might well push the Democrats into fighting a costly confirmation battle the party knows it will lose.
”The problem is that the interest groups that are of concern to Democrats might not be willing to accept what they see as rolling over and playing dead,” argues Mark Tushnet, a Georgetown University law professor. ”These things are as much about satisfying constituency groups as affecting the outcome.”
Most of the recent skirmishes in Congress over the filibuster have simply been preparing the ground for the almighty conflict ahead. Both sides will pump millions of dollars into television advertisements condemning or flattering the candidate judge and the Senate will have time for little else.
Congress still bears the scars from the bitter confirmation battles over Robert Bork, a conservative scholar nominated by Ronald Reagan in 1987 and defeated, much to the anger of the Republican right, and Clarence Thomas, who overcame allegations of sexual harassment in 1991.
David O’Brien, a political science professor at the University of Virginia and the author of a book on the supreme court appropriately titled Storm Centre, predicted that Bush would raise the stakes of the battle by picking a relatively young, committed conservative.
”His propensity is not to compromise on judicial appointments, unlike Clinton or his father,” O’Brien says. ”And Bush wants to put someone in there who’s going to last 20 years at least.”
The conventional wisdom has been that Justice Rehnquist will step down next week, at the end of the current court session — triggering the start of the battle. But the old judge may yet have a surprise up his golden-striped sleeve. Court-watchers say he has been looking relatively spry lately, and still seems to relish his job. The president may have to wait a little longer to leave his mark on history. – Guardian Unlimited Â