Politics in Play for a Seat Not Yet Vacant

The latest Supreme Court term ended Thursday without the momentous announcement that many in the capital had braced for: a justice’s retirement.

Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor are -- it increasingly appears -- staying put, despite weeks of speculation that either could choose to step down this month to allow President Bush to name a successor.

Some court-watchers cautioned that a retirement could still occur today or -- far less likely -- this summer.

The court, which usually reconvenes in October, is set to hear arguments in September in a landmark campaign finance case. The nine justices have sat together on the bench since 1994, the high court’s longest stretch without change since the 1820s.

C. Boyden Gray, a top advisor in the first Bush White House who has formed a group to lobby for the current President Bush’s judicial nominees, said the likelihood of an imminent court vacancy diminished Thursday “by a great deal.” He said chances of a summertime retirement would be “almost nonexistent” if no announcement comes today.

Far from deflating the interest groups that had mobilized for the possibility of a Supreme Court confirmation fight, Thursday’s non-event -- coupled with this week’s landmark rulings on affirmative action and gay rights -- served as a reminder for those groups of the stakes involved.

It also intensified passions for fund-raising and political organizing.

With Democrats and Republicans deadlocked over several of Bush’s lower-court picks, most observers expect that a Supreme Court vacancy would set in motion the most intense battle over a judicial nomination since the Senate narrowly confirmed Justice Clarence Thomas in 1991.

Liberals opposed to Bush nominees said a titanic battle would come someday soon.

“Regardless of whether a Supreme Court resignation occurs next week, next year or the year after that,” said Ralph G. Neas, president of People for the American Way, “vacancies are inevitably coming in the near future.”

Neither Rehnquist, 78, nor O’Connor, 73, has voiced any enthusiasm for quitting. Rehnquist has rehired his administrative assistant for another year and has speaking engagements set for the fall. O’Connor has told several people she has no plans to leave.

In any case, the timing of a vacancy would be important in a number of ways.

If a resignation occurs this summer, it could affect the upcoming campaign finance case, which involves a major constitutional fight over free speech and the rules of political combat.

If one occurs at the end of the court’s next term, it would spark an ideological struggle at the height of the 2004 presidential election. And if one occurs in 2005, it would either fall in President Bush’s second term, if he is reelected, or in the term of a new Democratic administration.

What’s more, there is no guarantee that Bush, if reelected, would have the Republican Senate majority he enjoys now.

Some Republicans seem anxious to have the battle sooner rather than later.

“There’s a better chance for confirmation of a Supreme Court nominee this summer than there would be next summer,” said Sen. John Cornyn (R-Texas), a member of the Judiciary Committee, “and that has to be in the back of [Rehnquist’s and O’Connor’s] minds. The silly season just gets more and more intense the closer we get to the [2004] election, and basically the confirmation process just gets shut down.”

Bush’s wishes on timing are unknown, though his leanings on judicial philosophy are not. During the 2000 campaign he expressed admiration for Justices Antonin Scalia and Thomas, anchors of the court’s conservative wing.

White House Press Secretary Ari Fleischer described those statements Thursday as still “operative.” He added, though, that Bush would strive to pick justices “from the mainstream” who would “be strict in interpretations of the Constitution.”

Asked whether Bush would consult with Democrats to find a consensus nominee, Fleischer said: “The president has not ruled in or ruled out what actions or meetings or different things he may or may not do for a vacancy that does not exist.”

This much is certain: Bush allies and foes will continue to use the issue to raise money. Tonight, Gray said, his group, the Committee for Justice, will collect funds at a Washington event headlined by presidential nephew George P. Bush. Former President Bush also has helped raise money.

Democrats and liberal court-watchers have been doing much the same. They also have been signing up supporters. Neas said his group’s base has doubled, to 600,000 members and volunteers, since Bush took office in January 2001.

“The future of the federal judiciary -- especially the Supreme Court -- is the most important domestic issue facing the country,” Neas said. “All the things that we do definitely help build our grass-roots network.”

Neither conservatives nor liberals will disclose how much money they have raised. But both sides have financed some television advertisements recently to influence the partisan battles over controversial appellate court nominees.

This year, Senate Democrats have blocked two nominees in skirmishes that widely viewed as warmups for a Supreme Court battle. Democratic filibusters have blocked confirmation votes on Miguel A. Estrada, a Washington lawyer Bush nominated to the District of Columbia appellate court, and Texas Supreme Court Justice Priscilla R. Owen, chosen for the U.S. 5th Circuit Court of Appeals.

In addition, Democrats are threatening filibusters on other nominees, including Superior Court Judge Carolyn B. Kuhl of Los Angeles, chosen for the U.S. 9th Circuit Court of Appeals.

Republicans outnumber Democrats in the Senate 51 to 48, with one independent who leans toward the minority. GOP leaders are seeking to break the judicial filibusters with 60 votes or change the rules to permit action with a simple majority.