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Possible Vacancy on High Court


The US Supreme Court is nearing the end of the term, with key decisions still outstanding on public displays of the Ten Commandments, on property rights and on computer file sharing. But the biggest unanswered question is whether Chief Justice William Rehnquist or any other member of the court will retire. Joining us to talk about all this is NPR legal affairs correspondent Nina Totenberg.

Good morning.

NINA TOTENBERG (NPR Legal Affairs Correspondent): Good morning, Renee.

MONTAGNE: Nina, to begin with, Chief Justice Rehnquist was diagnosed with a serious form of thyroid cancer last fall and, ever since, there's been much talk about his possible, even his likely, retirement.

TOTENBERG: Well, you know, Renee, a lot of people, me included, didn't think that the chief would ever return to the bench after he underwent a tracheostomy last fall. But by December, he was back at the court presiding over their internal conferences, and by March, he was back on the bench, presiding over the court's public sessions. It's been a very brave, one might even say heroic, performance. But I think that the chief justice will almost certainly retire at the end of the term. He's still performing with great dedication and acuity, but he is paler and thinner, both of which you'd expect since he gets all of his nourishment through a feeding tube, and he's almost 81 years old, so I think the end of his 33-year tenure is probably near.

MONTAGNE: Which brings us to, who would President Bush nominate to replace him? I mean, might it be a sitting justice?

TOTENBERG: Well, it certainly could be, but as a matter of historical fact, of the 16 chief justices in American history, only five came from within the court. And while Rehnquist's chief justiceship is viewed as extremely successful, in general promotions from within the court have not been so successful, largely because any group of nine people who live together for such a long time develop grievances and a promotion tends only to exacerbate them.

MONTAGNE: There was a lot of speculation, though, about promoting either Justice Antonin Scalia or Justice Clarence Thomas.

TOTENBERG: And there still is that speculation. They are two of the court's most conservative members and President Bush, as candidate Bush, mentioned them as models for the kind of justice he would appoint if elected. But Scalia is 69 and recent Republican administrations have wanted to name younger people for the maximally longest impact. And Thomas reportedly has indicated that he's not interested, not to mention the fact that another confirmation battle for Clarence Thomas would be quite a donnybrook.

MONTAGNE: So then who, if someone from outside the court?

TOTENBERG: Well, there's a pretty well-agreed-upon short list of conservative lower court judges that the White House is believed to be looking at. These aren't household names and some would be more controversial than others, but it seems to me that there are two basic ways that the White House is likely to look at this. One would be a purely ideological view; that is, to pick the person who would be the strongest intellectually and possibly most influential in an effort to make the court more conservative. And the other way to look at this is as a political opportunity.

MONTAGNE: And when you say political opportunity, what do you mean?

TOTENBERG: I mean to pick someone who is perhaps not a legal star, but is, for example, a Hispanic.

MONTAGNE: And in that category, who are the names?

TOTENBERG: Well, there's a 5th Circuit judge named Emilio Garza, very conservative, certainly qualified in legal terms, a pretty outspoken opponent of Roe vs. Wade. So I think you can see the benefits both for the president's base and for the huge Hispanic vote that Republicans are trying to crack. And don't count out the attorney general, Alberto Gonzales, who has served as the president's trusted adviser back to Mr. Bush's days as governor of Texas.

MONTAGNE: But if President Bush wanted to go a different route, say really focus on a brilliant conservative legal star, who might that be?

TOTENBERG: Well, the names most often mentioned are John Roberts, who's a judge on the Court of Appeals here in Washington. He has the added advantage of being both a known conservative commodity but something of a stealth candidate, since he's been on the DC court for less than two years, so there isn't much of a record for liberals to attack. Then there's Judge J. Michael Luttig, who's been a federal appeals court judge in Virginia for 15 years. Like Roberts, he's young, only 50 or maybe 51 by now. Like Roberts, he's a former Supreme Court clerk and, like Roberts, he's viewed as very smart. But Luttig is seen as much more controversial, both because of his record of written opinions and because he ran Clarence Thomas' confirmation hearing in 1991 after he'd been confirmed as a judge on the 4th Circuit Court of Appeals and that's raised some questions among legal ethics experts.

Then, too, there's Luttig's stellar judge on the 4th Circuit, J. Harvie Wilkinson, who is the former chief judge of that circuit, another brainy conservative. But Wilkinson is 60 and is viewed by some within the administration as less conservative than Luttig. Also on the short list is Michael McConnell, a widely respected conservative on the 10th Circuit Court of Appeals. Though his tenure on that court is relatively short, McConnell does have a long written record from his days as a law professor at the University of Chicago and University of Utah. He would likely have the support of both the religious rights groups and many liberals in the academic community who view him as open-minded and independent. But he has taken a lot of very controversial positions. It's his independence, though, that seems to have possibly disqualified him in the eyes of some at the White House.

And then there's Judge Samuel Alito of the 3rd Circuit Court of Appeals in Pennsylvania, another conservative star, sometimes nicknamed `Scalito,' after Justice Scalia. But Alito is much more reserved in personality than Justice Scalia. I say all this, Renee, as if I actually know what's going on, but in the last analysis, only George Bush really knows and nobody outside of a very small group of people is privy to his thinking.

MONTAGNE: Nina, thanks very much.

TOTENBERG: Thank you, Renee.

MONTAGNE: NPR legal affairs correspondent Nina Totenberg.

This is MORNING EDITION from NPR News. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.