Rehnquist’s Supreme Court Absence Fuels Rumor of June Retirement
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

WASHINGTON – Word that Chief Justice Rehnquist would not return to the bench when the Supreme Court resumes oral arguments today increased speculation that the ailing judge will retire from his seat.
Officials of the Bush administration expect the 80-year-old judge, who is being treated for thyroid cancer, to retire by June if his health permits him to serve until then, the New York Times reported in today’s issue.
The Times quoted unnamed officials as saying it is considered disruptive for a judge to leave the court midterm, before the court breaks for the summer.
The chief justice’s retirement would give President Bush an opportunity to fill the most prestigious judicial seat in the nation and set the stage for a possible partisan nomination battle in the Senate.
Chief Justice Rehnquist has missed oral arguments for months, and since an announcement of the gravity of his condition immediately after the November elections, speculation over his replacement has abounded.
Justice Rehnquist made a rare public appearance in January to swear in Mr. Bush at the inauguration, but he has indicated he would not be present when the court resumes hearing oral arguments today. Court officials have said he has read transcripts of the court’s proceedings, and he has continued to vote on cases.
Any appointment to the top court will come under intense political scrutiny, since the Supreme Court can overrule all courts in the nation. Every seat is potentially powerful, as the current court often splits 5-4 on many of the most contentious social issues.
But because the chief justice was a reliable conservative vote, and Mr. Bush is widely expected to appoint a judge with a conservative judicial philosophy, the appointment is unlikely to tip the court’s ideological balance.
President Bush has said he admires the judicial styles of Justices Scalia and Thomas, sparking speculation that either judge could be elevated to the largely ceremonial position of chief.
In that case, the president would have to appoint an associate justice and could tap a younger judge who could leave his mark on the court for decades.
Mr. Bush could also nominate someone directly to the position of chief.
Individuals frequently mentioned as possible candidates include two conservative judges on the Virginia based U.S. Court of Appeals for the Fourth Circuit, J. Michael Luttig and James Harvie Wilkinson III.
A former law professor and religious liberty specialist who now sites on the U.S. Court of Appeals for the Tenth Circuit, Michael McConnell, is also mentioned.
The anti-abortion judge has said he would not attempt to overrule Roe v. Wade as an appellate judge, but the issue would undoubtedly be raised at his hypothetical Senate confirmation hearing.
A former solicitor general, Theodore Olson, has argued the federal government’s case before the Supreme Court on many occasions but would draw scrutiny for his past partisan legal activities.
Other names include three U.S. Court of Appeals judges: Samuel Alito of the Fourth Circuit, John Roberts of the 10th Circuit, and Edith Jones of the Fifth Circuit.
Another potential candidate is Mr. Bush’s former deputy attorney general, Larry Thompson, now an executive at PepsiCo.