Rehnquist’s death creates ideological gap in Court

The composition of the Supreme Court grew a little hazier last week with the death of Chief Justice William Rehnquist. With the identity of President Bush's second nominee to the Court still a mystery, the political leanings of the eventual new justice possibly subject to change and the Senate confirmation process still up in the air, only one thing is clear: Change is afoot.

One thing that made the Rehnquist Court notable was its remarkable and precarious ideological balance. Four justices frequently took the liberal side of cases, and four others, including the staunch Rehnquist, just as often typically took the conservative side. Sandra Day O'Connor, who defied categorization as either a traditional liberal or conservative, was often the "swing vote," meaning whichever group she sided with would win the upper hand with five votes.

"She called them as she saw them, and sometimes she pleased one side and sometimes she pleased the other," law professor Janine Geske said.

Now that O'Connor has announced her retirement and Rehnquist has died, that delicate balance is not likely to go unaffected.

"It entirely depends on who replaces them," political science professor and Supreme Court expert Christopher Wolfe said in an interview earlier this week. "Anyone who replaces Rehnquist is not likely to be more conservative than Rehnquist, but whoever replaces O'Connor may be more conservative. So the O'Connor replacement will definitely shift the balance of the court somewhat."

President Bush recently nominated John G. Roberts Jr., the D.C. judge he originally sought to install as O'Connor's replacement, as Rehnquist's successor. That reshuffling leaves O'Connor's spot open for a new nominee. The nominee has not yet been named, but his or her identity has been the subject of feverish speculation.

"There are lots of different possibilities," Wolfe said. "There's a fairly long short list of people he could nominate to the court."

Many law scholars feel there is political pressure on Bush to appoint a nominee who is a woman, a minority, or both.

"The pressure has increased at this point," Geske said. "A lot of people, including a lot of males, think we need to increase the diversity in the court."

"Despite disclaiming quotas, I think the pressure is strong to appoint a woman or Latino," said associate professor of law Scott Moss.

But perhaps more important than the nominee's gender or ethnic identity are his or her political inclinations. Bush is likely to nominate a conservative to replace O'Connor, and two conservative nominees could effectively render the court conservative and impact cases on hot-button legal issues the court could possibly hear.

However, just because a nominee's viewpoint seems conservative at first blush doesn't mean it will remain so for the duration of his or her lifetime appointment.

"We have a long history of justices not doing exactly what the appointing powers thought they'd do," Geske said. "We don't know where Roberts lies, and people change. As times change, people change."

An interesting sidenote to the case is the Senate confirmation process that looms before the two nominees. Supreme Court nominees are typically approved when the president's party controls the Senate, as the Republicans do now. But Bush's popularity and hence political clout have diminished in recent weeks due to events in Iraq and the perception that his administration was sluggish to respond to Hurricane Katrina.

"His political clout has never been lower," Moss said.

That may limit Bush's ability to strongarm fence-sitting Republicans into confirming his nominee. But, as Moss notes, "the moderate Republican lobby could fit into a phone booth," so what will unfold in the Senate is still uncertain.

This article was published in The Marquette Tribune on September 8, 2005.