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Death's impact on court minimal

President Bush will likely replace the chief justice with another conservative. The question: What kind?

Published September 5, 2005

WASHINGTON - The death of William Rehnquist will allow President Bush to fill a second seat on the Supreme Court, but it's unlikely to cause a dramatic shift of the nation's highest court because Bush probably will pick someone similar to the conservative chief justice.

In his 33 years on the court, Rehnquist established a record that won praise from Bush and other Republicans. He boosted police powers, opposed abortion rights and supported religious displays in public buildings.

Bush would like to replace Rehnquist with a like-minded conservative in his or her 50s who could steer the court to the right for decades.

Rehnquist's death "is unlikely to make a lot of difference in the court," said Edward Lazarus, a legal analyst and author of Closed Chambers , an inside look at the Supreme Court. "But over the long term, by replacing Rehnquist with another conservative, you lock in the court for 20 years."

It's far different than just two months ago when Bush got the chance to replace Justice Sandra Day O'Connor, a swing vote on issues such as abortion rights and affirmative action. If confirmed, Bush's nominee, John G. Roberts Jr., is likely to shift the court to the right. But replacing Rehnquist with a like-minded jurist will have less impact.

"They hit the jackpot when she decided to retire. When Rehnquist died, it was a wash," said law professor Mary Cheh of George Washington University.

The president's choice could be affected by the fallout from Hurricane Katrina. Bush is facing so much criticism and has sunk so low in the polls that he may choose a more moderate nominee.

"If he ever thought about putting forward a hard-nosed conservative, in the wake of Katrina and the negative publicity he's received, this is not the time to pick a political fight," Lazarus said.

Bush said Sunday that he would move swiftly to name a replacement. The Senate Judiciary Committee is scheduled to begin hearings Tuesday on the nomination of Roberts to replace O'Connor. But with the court scheduled to start its new term on Oct. 3, it is likely the court will be shorthanded for several weeks.

Bush has probably made considerable progress in choosing a replacement. Rehnquist had been ill for months, so the administration started contacting potential nominees last spring. The surprise retirement of O'Connor in July created the first seat to fill, but the White House was ready.

Those same candidates have been screened, and Bush has interviewed several of them. So he can move quickly if he wants any of them to be chief justice.

The leading contender appears to be Attorney General Alberto Gonzales, a longtime friend of Bush who would be the court's first Hispanic justice. Other possible choices include appellate Judge Michael McConnell of the 10th Circuit; Judges Edith Jones, Edith Brown Clement and Priscilla Owen, all of the 5th Circuit; and Judges Michael Luttig and Harvie Wilkinson III, both of the 4th Circuit.

Bush also could nominate a current justice to be chief and then fill the open slot. Bush has praised Justices Antonin Scalia and Clarence Thomas, but he is unlikely to elevate them because they would face strong opposition from Democrats.

"They hit the jackpot when (Justice Sandra Day O'Connor) decided to retire. When Rehnquist died, it was a wash."

- MARY CHEH, a law professor at George Washington University

Another possibility would be to nominate Roberts, who is likely to be confirmed, as chief justice and pick someone else to fill O'Connor's seat.

Gonzales is believed to be more moderate than the other candidates and more likely to win Democratic support. Lazarus said Bush is less likely to choose a white man because of the criticism the president has faced over his administration's response to Hurricane Katrina.

But University of Tulsa law professor Paul Finkelman said a Gonzales nomination allows the confirmation hearings to become a debate about the Iraq war and allegations of prison abuse.

No matter whom Bush chooses, he is likely to pick a conservative.

"It's highly unlikely anyone President Bush appoints will be much different," Finkelman said. "There will be no radical change. The question is what flavor of conservative."

[Last modified September 5, 2005, 01:16:12]

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