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Rehnquist decision clarifies political landscape

Poses new challenges for White House

By Bill Mears
CNN Washington Bureau

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William H. Rehnquist

WASHINGTON (CNN) -- The statement from the chief justice was classic William Rehnquist: blunt, to the point, with just a hint of pepper to signal what he was really thinking.

Colleagues say that by vowing to continue in his job despite his health problems, the 80-year-old jurist signaled not only a personal strength, but a desire to see the unfolding political process run smoothly for the benefit of the Supreme Court as an institution.

"I want to put to rest the speculation and unfounded rumors of my imminent retirement," Rehnquist said in a statement issued Thursday night, hours after he left a hospital where he was being treated for a fever.

Despite rumors circulating for months that he is gravely ill as he battles cancer, Rehnquist indicated he will continue "to perform my duties as chief justice as long as my health permits."

"It says he's feeling better, that he is still in charge," said Jay Jorgensen, a Washington attorney who clerked for Rehnquist. "It's not like him to offer his personal thoughts on these kinds of things, but he clearly felt it was time to end the talk [over retirement] and restore some normalcy to the court."

Rehnquist was diagnosed with thyroid cancer in October. His early treatment regimen suggested an aggressive form of the disease, but he refused to offer specifics.

He did not participate in the court's business for weeks while he underwent outpatient chemotherapy and radiation. But he soon began working from home, returned to his office in December, and was back on the bench by March.

Continuing a long custom, the chief justice swore-in President Bush at the January inauguration, making a dramatic return to the public spotlight.

He still looks somewhat frail, relying on a cane and using a wheelchair and walker occasionally.

Darth Vader joke

His voice is raspy, occasionally weak, from a tracheotomy tube inserted after his initial diagnosis. He has joked to friends he sounds like Darth Vader.

On the last day of the court's public session June 27, Rehnquist from the bench noted an unusual number of separate opinions issued in a contentious Ten Commandments case, joking, "I didn't know we had so many justices." It drew heavy laughter from the court's spectators.

That signaled to many of his associates that the "chief" as he is affectionately known, was having too much fun to retire, despite his cancer.

"He loves the court," said Richard Garnett, a former Rehnquist clerk and now a law professor at Notre Dame University, "So he must have felt, 'If I can stay on the job with a reasonable expectation I can maintain my health, then why not.'"

Persistent rumors

But rumors persisted that he would soon resign, and the speculation gained momentum when his good friend and former law school classmate Sandra Day O'Connor announced July 1 she was stepping down after 24 years on the high court.

His office declined to comment, but several news reports claimed Rehnquist definitely would step down last week, prompting all-day camera stakeouts at his Arlington, Virginia, home. Then speculation shifted to an announcement this week, perhaps after negotiating his exit with the White House.

The Supreme Court press corps remained on alert, seeking any hints of a retirement. Perhaps teasing the Washington wags who had been wrong about him for years, Rehnquist responded cryptically Friday when asked if he would retire: "That's for me to know and for you to find out."

His surprise two-day stay at the hospital this week, coupled with the continuing spotlight on him, may have been enough. His family arranged for the statement denying he was ready to go.

Colleagues were divided over what finally drove him to make his intentions public. He is an intensely private man, known to have little interest in the Washington political game. One source close to Rehnquist, who wished not to be identified, said, "All that wild speculation must have convinced him he had to say something."

Former clerk Garnett joked, "I think foremost in his mind was getting reporters off his lawn." But he added, "There was so much talk, and an unusual combination of factors: a justice nearing retirement, who was ill, and the politics aligning over [O'Connor's] vacancy. And people were being kept in the dark, about what he was planning."

A different reason

But former clerk Jorgensen said he sees a different reason, noting the chief justice's love of the court and his desire to "keep the trains running smoothly and on time."

"It's about leadership," he said. "He really thinks about the larger picture, what this statement will do for the court, for the other justices, the new justice, and indirectly what it does for the Senate and the president. I don't think it's driven by personal irritation, though I'm sure he's at least a little annoyed at the speculation."

Whether intended or not, Rehnquist's decision to soldier on certainly clarifies and streamlines the confirmation process for O'Connor's replacement. Legal and political analysts have been divided over the benefits for the president of having either one or two court vacancies.

"I don't think he was consciously trying to help the White House by announcing something now, but it does make things easier for the president," said Garnett. "It simplifies things because he doesn't feel like he has to make both conservatives and moderates happy with two picks. The one vacancy will allow him to focus on the right person he sees for the job."

Competing pressures

Other experts say the political flexibility the president may have enjoyed is gone, and he now faces competing pressures: whether to choose a staunch conservative and likely prompt a bitter confirmation fight, or select a more moderate candidate which may alienate some of the president's supporters. And Bush may be hard pressed to name the first Hispanic to sit on the court or to bow to gender.

"The president really would need to replace Justice O'Connor with a woman," said Thomas Goldstein, a Supreme Court legal analyst who has argued many cases before the justices.

"It would be very strange to go back in time if you will, to a situation where you have eight men and one woman on the Supreme Court," he said. "But, at the very least I would be surprised if he replaced Sandra Day O'Connor with just another white male Supreme Court justice. There would have to be some effort at diversity made."

One thing is clear for now: the high court will be led, as it has for the past 19 years, by the same chief justice.

"He's a tough man," said Jorgensen, "and he knows he has a tough job ahead of him, with all the changes about to happen."

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