WASHINGTON (MarketWatch) – Chief Justice William H. Rehnquist, 80, died Saturday night at his home in Washington, after struggling since October with thyroid cancer. His death creates the second vacancy on the court for President Bush to fill and provides a historic opportunity to shape the future of the nation’s highest court.
Bush on Sunday called Rehnquist a man of “character and dedication” and said he would work swiftly to fill the two vacancies. “It will serve the best interest of the nation to fill those vacancies promptly,” Bush said.
Rehnquist’s death comes just days before hearings were scheduled to begin on Bush’s choice for a successor to retired Justice Sandra Day O’Connor. Hearings had been set for Tuesday on Judge John Roberts, 50, a former Rehnquist clerk, though may they be delayed, according to a report in the online edition of the Wall Street Journal.
Read related story at WSJ.com.
The court said in a statement that Rehnquist suffered “a precipitous decline in his health the past couple of days.” Up to that time, he had “continued to perform his duties on the court,” according to the statement.
In mid-July, Rehnquist issued a statement in response to speculation regarding his health and retirement, saying, “I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits.”
Rehnquist’s death comes three months after O’Connor announced her retirement. O’Connor, a moderate conservative often regarded as the high court’s swing voter.
Now, the death of Rehnquist, a conservative, leaves another important vacuum for the president to fill, and most analysts expect Bush to nominate another conservative to the key legal post.
Rehnquist took his seat as an associate Supreme Court justice in 1972 after being appointed by President Richard Nixon, and became chief justice in 1986, during the Reagan administration.
Known for his backing of state’s rights and willingness to compromise, Rehnquist also was a pivotal member of the court’s conservative wing, which includes justices Anthony Kennedy, O’Connor, Antonin Scalia and Clarence Thomas.
He recently voted against a key decision that makes it easier for governments to take over private property for economic development. He also voted in the president’s favor in the 2000 Bush v. Gore decision that sealed the outcome of that year’s presidential race and has weighed in on watershed issues over the years ranging from abortion to Miranda rights. And, in the final week of the court’s last term, Rehnquist also upheld class-action claims made against Exxon Mobil
American Bar Association President Michael S. Greco said in a statement issued Sunday that Rehnquist’s “defense of an independent judiciary, which he appropriately called the ‘crown jewel’ of our system of government, and his strong advocacy for adequate resources to support the vital role of the judiciary in our republic, reflect the noblest principles that guide our nation.
Jay Sekulow, Chief Counsel of the American Center for Law and Justice, specializing in constitutional law, said in a statement Sunday that Rehnquist served the nation with distinction. “Chief Justice Rehnquist clearly understood the importance of the First Amendment protections outlined in the Constitution,” said Sekulow. “His death marks the end of a historic era that spanned decades and saw the high court tackle many of the most significant cultural and political issues of the day.”
Filling Rehnquist’s shoes
Now, Corporate America has a massive stake in who Bush chooses to follow Rehnquist. But the appointment of another Republican to the bench doesn’t mean he’ll side with business interests every time, analysts said.
“Assuming the court is going to get more conservative, the question is what type of conservative is going to get on?” asked Bert Foer, president of the American Antitrust Institute.
In replacing Rehnquist, Bush could choose either a social conservative or an economic one, or a combination of both. Though not reportedly being considered for chief justice, Justice Clarence Thomas is a good example of an “ideological” rather than a business conservative, notes Carter Phillips, a Washington attorney who has argued before the Supreme Court.
Whom Bush appoints depends largely on what constituency he wants to satisfy, and the traditionally polarizing issue of abortion rights is already looming large for the court’s next session.
But the justices will have their share of business cases to grapple with in the next term. Rehnquist’s successor and his eight fellow justices will have at least two or three significant antitrust cases to decide. Legal experts say that’s a large number of antitrust cases, even given the 75-80 cases the court hears each year.
Justices will examine federal price discrimination law in Volvo Trucks North America, Inc.
vs. Reeder-Simco GMC, Inc., whether a patent holder automatically has monopoly power in Illinois Tool Works, Inc.
vs. Independent Ink, and whether Shell Oil’s and Texaco’s pricing of its gasoline on the West Coast violates antitrust law. Texaco is now owned by Chevron
Most of the attention on possible successors so far has focused on their social records, on issues like abortion.
“I expect he’s going to appoint someone conservative in the traditional sense, but that’ll vary from case to case,” said Roger Pilon, an analyst at the Cato Institute, a Washington think-tank.
“One would think that would portend well for business cases, but we’ve seen enough traditional conservatives (stray) off the reservation lately to give pause about that,” said Pilon.
“One justice could actually make a difference,” about business and especially antitrust cases, said the American Antitrust Institute’s Foer.
No matter who Bush nominates for either the chief justice’s post or O’Connor’s seat, the process will be intensely political. The Republican-led Senate Judiciary Committee must hold confirmation hearings on the president’s appointee, and a slew of interest groups will weigh in on Bush’s choice.
“Once a nominee is announced one of the things that will be scrutinized is the record on corporate issues,” said Elliot Mincberg, legal director for People for the American Way, a group that lobbies for the environment and civil liberties. “We will look at the record on corporations versus individuals,” he said.
So far, a few business cases have been announced. For a fuller docket, though, the public will have to wait until shortly before or on Oct. 1, when the new court convenes.
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