Retirement fears ease as top court adjourns

The Hill ^ | 6/24/03 | Jonathan E. Kaplan

[LdSentinal]

An exchange of letters by Senate Democrats and the White House last week over their respective roles in Supreme Court appointments points to the prospect of a brutal fight when the next vacancy occurs.

But, contrary to speculation, top administration officials do not expect any of the nine justices to retire before the 2004 election, The Hill has learned.

Talk of a summer retirement emerged months ago as observers pondered whether Chief Justice William Rehnquist, 78, and Justice Sandra Day O'Connor, 73, might want to give President Bush the chance to replace them with similarly conservative jurists before Bush next needs to face the voters.

The prevailing view within the West Wing, however, is that the justices will wait until 2005. That suggests that potential retirees expect Bush to win and the Republicans to widen their current 51-49 majority in the Senate.

Senate Democrats have called on Bush to consult them before making a nomination, and Sen. Charles Schumer (D-N.Y.) sent the White House a list of his ideal candidates. But White House Counsel Alberto Gonzalez dismissed the Democrats' letters out of hand.

A justice has not retired in a decade -- the longest period since the 1820s -- and there are hints the wait might get quite a bit longer.

Although attorneys and law professors say Rehnquist has been less of a force on the court since his knee surgery last year, others say that he has given no indication of planning to retire.

When asked if the chief justice would like to debunk the rumors of his impending retirement, a secretary in his chambers chuckled and said she had no comment. The court's schedule might also indicate that the chief and other justices are staying on. Edward Lazarus, author of Closed Chambers and a former Supreme Court clerk said:

"The fact that they took this campaign finance reform case and scheduled it for a September argument and that it engenders very strong feelings, one has to wonder whether the Chief [Justice William Rehnquist] . . . will step down.

"O'Connor is . . . the most powerful woman on earth. She defines the Constitution in every area of law. She has a very comfortable working life up at the court. She knows the job and is very comfortable in it. She's almost an iconic figure in American politics, something that she relishes."

Carter Phillips, a Supreme Court practitioner at the Washington office of Sidley Austin Brown & Wood, said: "The tradition of the chief justice is to retire upon his replacement. But his replacement is not going to be . . . [in office] by September" to hear the arguments in the campaign finance reform case.

If Rehnquist retired before hearing McConnell v. FEC, the court could split 4-4, and a tie reaffirms the lower court's ruling without a written opinion.

"It's an unacceptable outcome," Phillips said.

Presidential politics could hasten or postpone any retirements, said Douglas Kmiec, dean of the Columbus Law School at the Catholic University of America.

If there are no retirements before the next presidential election, 16 months away, it could be at least another full term before a justice steps down. That, Kmiec says, "could suggest that factor would be an encouragement to the chief justice to retire now to give the president the greatest opportunity to appoint someone."

Aging justices have little incentive to retire. Justices Harry Blackmun, Lewis Powell, Potter Stewart, William Brennan and Thurgood Marshall all died a few years after leaving office.

Justices retire on full salary, but life on the bench has other rewards.

"You have a tremendous support system of four law clerks, two secretaries and a whole building," said Lazarus. "It is intellectually engaging on a regular basis. These people do enjoy the job enormously, and their privacy is not invaded like politicians." Justices also have an aide to chambers, which is essentially a gofer.

Most court watchers agree that justices care deeply about who chooses their successor and who their successor is, although how they handle the retirement announcement varies.

Former Chief Justice Warren Burger "enjoyed acting in an advisory role working with the [Reagan] administration . . . he wanted to be part of selection process and even forwarded a short list of names," to White House, said David Yalof, a political scientist at the University of Connecticut.

In announcing he would step down from the court, Blackmun alluded to having informed President Clinton months earlier about his intention to announce his retirement.