New appointment to the Court? Q & A
Chief Justice William Rehnquist’s treatment for thyroid cancer (see below) inevitably raises questions about the possibility that he could be forced to retire, or could choose to do so, perhaps sooner than he had been thought likely to do. To sort out what could happen, here are some obvious questions and some answers:
Is there any requirement for Rehnquist to step down?
No. He has a lifetime appointment, and cannot be forced out for health reasons, even if his condition worsens. If he had been thinking about retirement, and he has said he was doing so from time to time, this illness may advance the date. It has become customary, though not obligatory, for a Justice to step down at the end of a Court term. Thus, it was thought most likely that Rehnquist’s earliest departure would be next June. That now could change.
Q. He is due back on the bench Monday, according to the Court. Will he retire then?
A. Almost certainly not. The present plan for him to return to work seems to suggest either that he is satisfied he can continue to carry on the work, or at least that he wants to test his strength before making a decision about the future. He is aware that the Court’s future is an election issue, and thus he would not be likely to announce his retirement the day before the Nov. 2 election is held; that could be awkward.
Q. If Rehnquist were to announce a plan to retire, but not actually leave the job, could a successor be placed on the Court immediately?
A. No. There would have to be an actual vacancy before Rehnquist could be replaced. By law, there can only be nine members of the Court.
Q. Suppose he were to retire and step down between now and the end of the year, could he be replaced immediately?
A. Yes. President Bush could make a recess appointment – that is, if the Senate continues with its current recess, the President could make a temporary nomination to the Court during the recess. Under the Constitution, such a new Justice (or Chief Justice) would serve until the end of the next annual session of Congress, unless the Senate in the meantime approved the nomination formally.
Q. Could President Bush make a recess appointment even if he were to be defeated on Nov. 2?
A. Yes. His current term is not to end until next January 20, and he would retain the full powers of the office until then, even if he were a “lame duck president.” It would be an astonishing thing to do for a defeated President, but he could do it, constitutionally, as long as the Senate is in recess. (Incidentally, the scope of presidential power to make recess appointments to the courts during Senate recesses is at issue in a pair of cases now pending at the Supreme Court. The Court has not yet acted on either of those.)
Q. As a recess appointee, would the new chief justice have the authority to perform the duties of the job?
A. Absolutely; the job would be his (or hers) for the duration of the appointment – that is, until at least the end of next year’s Senate session.
Q. Would Rehnquist be likely to make a deal with the President to step down while the Senate was in recess?
A. Very doubtful. It would reflect badly on Rehnquist and on the Court, and he is keen on maintaining respect for the institution. There is no doubt that any such deal would become known publicly, through leaks. If Bush were to be defeated Nov. 2, the existence of any such deal would look very much like an attempt to highjack the chief justiceship. That would create such a political uproar as to bring partisan gridlock to Washington – and, it very likely would lead to a messy and disruptive lawsuit.
Q. Is there anyone Bush could put on the Court in that situation without causing such an uproar?
A. It is hard to imagine anyone so universally acceptable as to quiet the furor. But elevating Justice Sandra Day O'Connor to the chief justiceship is an interesting possibility.
Q. If Senator Kerry were to be elected Nov. 2, could he do anything to stop a Bush recess appointment?
A. As President-elect, no; until he could be sworn in as the new president, he would have no power to use any of the authority – official or symbolic – of that office. And he could do nothing by himself to stop a recess appointment by Bush.
Q. Is all of this merely the wildest kind of speculation?
A. Probably. But speculation of this kind is rife in the wake of the announcement of the chief justice’s cancer treatment, and in view of the importance of the Court’s future as an issue in this year's presidential election.
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