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The great court guessing game  
Thu, Oct 21, 2004
Source UPI
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By MICHAEL KIRKLAND

WASHINGTON -- Presidents come and presidents go, but the Supreme Court hangs around forever.

Or so it seems.

Battles with Congress may frustrate a president's agenda. Members of the opposing party, if strong enough, may try to render the chief executive irrelevant. But if a president has the opportunity to nominate candidates for the Supreme Court, and has a reasonable chance of getting the nominees through the Senate, those choices will shape how people live in the United States for decades to come. Like all federal judges, Supreme Court justices are allowed to serve for life, pending "good conduct," and can only be removed by retirement, death or impeachment.

As voters prepare to vote Nov. 2, with either incumbent President George W. Bush or Sen. John Kerry, D-Mass., likely chosen to lead the nation, a hyperventilating media is once again speculating on the picks each would make for the highest court if given the chance.

Fueling the great guessing game is the fact that there hasn't been a vacancy on the Supreme Court in a decade -- the longest period without a vacancy since the 1830s.

None of the court members has given the slightest indication he or she will step down soon, but all of them except Justice Clarence Thomas are older than 65. Many media scenarios center on Chief Justice William Rehnquist retiring. A flurry of reports over the last several years pointed to inside information that Rehnquist was about to step down, but each report proved false. Rehnquist himself has been keeping his plans pretty close to his vest, both privately and publicly. Factors that could lead to his retirement include his health. The chief justice has severe back pain and must leave the bench at least once during each argument, going through the curtain behind the bench and walking the hall in an attempt to ease the ache. He also appears to injure a joint or break a bone at least once during each term. Another factor is his age. Rehnquist turned 80 on Oct. 1.

But age isn't everything, especially on the Supreme Court. A number of justices have served well into their 80s without much trouble. The job isn't exactly strenuous. The current Supreme Court has the lightest caseload in its history.

Rehnquist also has a realistic record to aim for: longest-serving member of the Supreme Court. The late Justice William O. Douglas served for more than 36 years, from 1939 until 1975. Rehnquist has served 32 years, from 1972 to the present. If he can hang on for just less than five more years, he will have topped Douglas.

Another factor that could weigh in either direction is the occupant of the White House. Conventional wisdom says the conservative-leaning Rehnquist will hold on until a Republican president has a chance to name his replacement. Nothing in Rehnquist's character, however, suggests that he will not go precisely at the time of his own choosing, no matter who is president.

But supposing for argument's sake that Rehnquist does step down next term or sometime over the next four years? How would President Bush or President Kerry replace him?

When running for the top job in 2000, Bush said he admired Justices Antonin Scalia and Thomas the most among the current members of the high court. The two justices are the most conservative members of the court and usually vote in lock step.

Neither would stand much of a chance in the closely divided Senate of being confirmed chief justice.

Scalia is the poster boy of judicial evil for the Democrats. Thomas is the most reticent and understated justice on the bench, and though privately a compelling personality, rarely speaks in argument or shows leadership in major cases.



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