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Toobin: A Rehnquist vacancy would be huge

CNN legal analyst Jeffrey Toobin
Supreme Court
William H. Rehnquist
Jeffrey Toobin

WASHINGTON (CNN) -- William Rehnquist, chief justice of the United States, is expected to be released this week after undergoing throat surgery for thyroid cancer Saturday at Bethesda Naval Hospital outside Washington.

A court spokeswoman said the 80-year-old Rehnquist could be back at work as early as next week.

Anchor Wolf Blitzer spoke Monday with CNN legal analyst Jeffrey Toobin about what Rehnquist's condition might mean to the Supreme Court if it forces his retirement.

TOOBIN: Well, Rehnquist is one of the three most conservative justices on the court with Clarence Thomas and Antonin Scalia. And so the big change would be if John Kerry were elected and got to appoint a chief justice who presumably would not be anywhere as near as conservative as Chief Justice Rehnquist is.

But even beyond the significance of the individual appointment is the fact that William Rehnquist is the chief justice. We always talk about Supreme Courts as the Rehnquist court, the Burger court, the Earl Warren court before Warren Burger.

The chief justices set the judicial tone for the country. The title that Rehnquist is very meticulous about is not chief justice of the Supreme Court. It's chief justice of the United States. And that's a meaningful distinction. And the thought of a vacancy there is a meaningful thought.

BLITZER: Jeffrey, give us some historic perspective of what he has contributed to this court over these years since he was brought in by President Nixon in 1972, elevated by President Reagan in 1986 to be chief justice of the United States.

TOOBIN: Well, he is such an enormously important figure. When he was appointed by Richard Nixon in 1972, he was regarded by some, including some of his fellow justices, as kind of a fringe figure, someone who was way off on the right wing, someone not in the mainstream either of the Supreme Court or the American judiciary.

He has seen history come to his side. He has seen the court grow more conservative and the judiciary get more conservative. And, indeed, I think it's safe to say the country get more conservative.

The issue he is most identified with among people who follow the court is the power of the states versus the federal government.

He is someone who believes that the federal government should be limited and the states should have greater power. But on a lot of issues, the country has come around somewhat to his thinking, but not entirely.

He has been an opponent of Roe v. Wade. Roe v. Wade [the decision that found state laws against abortion to be unconstitutional] was decided in 1973, the year after he got on the court. He dissented in Roe v. Wade.

He has seen the court come up to the edge of overruling Roe v. Wade as he has urged the court to do, but he has never succeeded. That obviously is important.

He was in the minority on the affirmative action decision that upheld affirmative action at the University of Michigan. He was in the minority on overruling the gay sodomy law in Texas.

So even though the court has come around much to his point of view, it has not gotten all the way there.

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