Editorial: Awaiting Bush’s pick for court

Friday, July 15, 2005 | 9:22 a.m.

WEEKEND EDITION

July 16-17, 2005

Earlier this year the conventional wisdom was that Chief Justice William Rehnquist, who has been battling thyroid cancer, was the most likely member of the U.S. Supreme Court to retire once the court's term ended. That assumption was turned upside down two weeks ago when Justice Sandra Day O'Connor, not Rehnquist, announced she would retire. Speculation then intensified that Rehnquist would soon announce his retirement, and increased even more last week after Rehnquist was hospitalized with a high fever. But Rehnquist finally put to rest the speculation, announcing that he would stay on the court as long as his health permitted it. The rumors had gotten so out of control that a week ago Friday conservative columnist Robert Novak said on CNN that Rehnquist would announce his retirement that afternoon at 4:50.

In one sense, the president now has it easier, in that he can focus on just one vacancy to fill. Nonetheless, it actually puts more political pressure on him. Here's how: The religious right has been insisting that Bush select an ultraconservative justice who would overturn Roe v. Wade. If Bush had two vacancies, then he might feel free to nominate a mainstream conservative such as O'Connor to the Supreme Court, on the assumption that he would still be able to nominate a far-right justice to replace a like-minded Rehnquist. Now he doesn't have that option, so he will be under more pressure to pick an ultraconservative justice, especially since he has held up Justice Antonin Scalia as having the kind of judicial philosophy he would look for if he were to nominate a Supreme Court justice.

In the end, we hope that the president is able to withstand the pressure from the religious right and that he nominates a mainstream conservative in the mold of O'Connor, a justice who has been a welcome consensus-builder on a court often riven by bitter divisions.