ONE CONSEQUENCE of the shift of Senate control to the Republicans may be to nudge a Justice or two towards retirement. It's about time we had a vacancy. The last was in 1994, when Harry Blackmun stepped down and his seat was taken by Stephen Breyer. More than eight years have passed--the second longest period without a vacancy since the early nineteenth century. So far history has blanked George W. Bush--he hasn't had a single opportunity to name a Justice. The only president ever to serve one full term and not appoint a Justice was Jimmy Carter. That's a record Bush would not like to tie.
Whether Bush has a High Court vacancy to fill is not up to him, of course. It's a matter for each Justice to decide. But there's good reason to think that the election results might move Chief Justice William Rehnquist to retire.
He's 78 and has served 30 years, seven more the average term of service for justices (as calculated by Henry Abraham, author of the indispensable "Justices and Presidents"). He's had an impressive tenure, first as a Nixon-appointed Associate Justice (and the most conservative member of the Burger Court) and then, since 1986, as Chief Justice (elevated by President Reagan). In recent years Rehnquist has seen the Court move closer to his views, especially on federalism. A notoriously fast worker, he has hobbies and interests outside his chambers. There wouldn't seem to be much to keep him on the Court, especially if--and this "if" was fulfilled by Tuesday's Senate results--his successor were nominated by a Republican president and judged by a Republican Senate.
Rehnquist, a keen student of the Court's history--and proud Republican--knows those are the circumstances most conducive to the appointment of a judicial conservative like himself. He also knows that once a presidential election year arrives, even nominations made under those circumstances can be undone. All of which is to say that Tuesday opened an attractive window of opportunity for Rehnquist that will be there through the next year. The most obvious time to step down--the one that best comports with the Court's own schedule--would be in late June of next year, when the current term ends.
"The question really is will it be one or two," a Justice Department lawyer tells me. What he means is this: Might another Justice also step down in 2003? He or she would likely be very senior (you have to say "very" given the unusual demographic here) and have served a long tenure. And be Republican.
Two Justices come to mind: Associate Justice John Paul Stevens, 81, who has served 27 years, and Associate Justice Sandra Day O'Connor, 71, now in her 22nd year. But the Ford-appointee, Stevens, a judicial liberal, is by all accounts uninterested in the political circumstances by which his successor might be nominated and confirmed. Yet O'Connor, who long ago served in the Arizona state senate, just might be.
If there is a vacancy--or two--expect fights within the administration over who should be nominated. Also expect opposition by liberals to whoever is nominated. But with the Senate controlled by Republicans, the President almost surely will prevail. In retrospect, we'll see that the Supreme Court was also what Tuesday was about.
Terry Eastland is publisher of The Weekly Standard.
Correction Appended, 11/7/02: The article originally identifed Justice John Paul Stevens as a Nixon appointee. He was appointed by Gerald Ford.