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News From The Chief:
Big news — Chief Justice Rehnquist announced tonight that he is planning on sticking around. SCOTUSBlog has the text of the statement Rehnquist released today:
I want to put to rest the speculation and unfounded rumors of my imminent retirement. I am not about to announce my retirement. I will continue to perform my duties as Chief Justice as long as my health permits.
David E Bernstein (mail):
Rehnquist's health has already prevented him from attending oral arguments. He should have the grace to resign; indeed, he should have done so at least a year ago. He's becoming a walking billboard for term limits for Justices, which is not a dignified end to his career.
7.14.2005 11:36pm
Marc J.:
Professor B.,

You have no idea what his current health situation is--is his cancer in remission? has all malignant tissue been removed?--so maybe you should reserve judgment. It's not exactly sensible to say that he should retire because of time missed last year; should a Justice retire any time a temporary illness causes him or her to miss arguments?

If his condition is chronic and looks likely to cause him to miss more time in the future, then I agree with you. But since neither you nor I are privy to his medical reports, I think you're jumping the gun.

And I wonder, would you be so sure he should leave if Kerry had won Ohio?
7.14.2005 11:53pm
Michael Winfield:
Just to be cynical and parse Rehnquist's carefully-worded statement:

1."[A]s long as my health permits" does not necessarily mean "I will drop dead during oral argument." It could mean, "If I feel ill tomorrow, I will retire tomorrow." It is an escape clause.

2. "I'm not about to announce" only means that it is not planned currently. That situation could rapidly change.

3. The only real effect of the statement is to end speculation, deal-making, and horse-trading and focus on getting O'Connor out. That is entirely consistent with the cynical p.o.v., and is, in fact, his stated purpose: "I want to put to rest the speculation and unfounded rumors of my imminent retirement..." As we all now know, an event need not be "imminent" to be "grave and growing" in probability.
7.14.2005 11:58pm
Scott Moss (mail) (www):
Ok, that's one source -- but what do Bob Novak's sources say?

Come to think of it, I'll re-post right after I check Drudge for the latest "scoop" (scoop of what, I won't say...).
7.15.2005 12:02am
Thomas, dissenting:
A good move, I think, for the Chief to make a statement and put an end -- at least for the short term -- to the frantic speculation. Earlier, with his sly "that's for me to know and you to find out" comment, it seemed as if he was almost reveling in the anxiety he was causing. The O'Connor announcement has people plenty excited, and it's a great relief to know his current plans.

Still, this is an awfully unusual announcement. Has a Justice ever had to publicly state "I'm *not* retiring" before?
7.15.2005 12:11am
David E Bernstein (mail):
He's over eighty, ill, and has served over thirty years. Enough is enough. I'd be less happy about it if Kerry had won Ohio, which is why Rehnquist should have retired before the 2004 election. I understand that it's hard to give up power, but George Washington did it.
7.15.2005 12:27am
Proud Generation Y Slacker:
Thomas:

Has any Chief Justice ever had to suffer the humiliation of a tetrarchy of Senate lightweights petitioning an outgoing Associate Justice to take his place when he hasn't announced his retirement?
7.15.2005 1:29am
42USC1983 (mail):
Hmm... What's this mean? With WHR staying, and SOC going, it's safe to say that Tenn. v. Lane and Hibbs are in danger. But hey, KEEP ABORTION LEGAL. Am I the only one who, with respect to SOC's successor, feels like he's stuck in Being John Malkovich. Abortion, abortion, abortion, abortion, abortion.
7.15.2005 1:51am
Mike G. in San Diego (mail):
So how did y'all feel about Justice Douglas and his health a few years ago?

BTW, here's a useful link to an earlier discussion on term limits and health issues.
7.15.2005 3:03am
Craig Oren (mail):
Douglas was a different case. His stroke affected his mental acuity. (What was his line? "I'll see what the Chief is doing and vote the other way"?) It is also unpleasant to work with a judge who has lost the ability to control his bowels. Rehnquist doesn't have these problems, and I'm not sure it's fatal that he can't question judges at oral argument.
7.15.2005 8:48am
JohnO (mail):

Has any Chief Justice ever had to suffer the humiliation of a tetrarchy of Senate lightweights petitioning an outgoing Associate Justice to take his place when he hasn't announced his retirement?


I've got to say, the public statements by those senators, and by the others who had previously talked to O'Connor about staying on are offensive to the max. One, there was no vacancy. Two, if senators have an idea for an appointment, they should raise it with the President privately. They have no business publicly vetting candidates in whom the President may or may not have any interest.

My favorite was Specter saying that O'Connor staying on for a year or two would do a great service to the country, which struck me as equivalent to saying that "we're just horrified at the prospect that we might have to replace two justices in one Summer. If he can't handle that, maybe we need a new chairman of the judiciary committee. This is not intended as a criticism of O'Connor in any way, but of the senators who on one hand want to usurp the President's role in nominating a justice but on the other hand are horrified to do their own constitutional role.
7.15.2005 9:38am
Marc J.:
Prof. B.,

"Enough is enough" isn't an argument. Neither is "there should be term limits."

Until you offer some evidence to suggest that 1) Justice Rehnquist is less competent than he was thirty years ago, and/or 2) his illness is hampering the Court, I'm just going to have to conclude that you're exploiting his health to argue for a policy (term limits) for which you have an a priori preference anyway.

Whether term limits are a good idea or not is a separate issue from whether Justice Rehnquist should retire now because of his health and age.
7.15.2005 10:02am
David E Bernstein (mail):
Marc J.:

Is there some presumption in your mind that Justice SHOULD linger on until they become mentally incompetent or completely physically disabled? The Justices have a life appointment, but that doesn't mean they have an obligation to stay on forever. Circuit judges generally don't. I think there are some obvious reasons for wanting turnover on the Court, including not wanting to be governed by individuals who have not lived in the "real world" for decades, including having been surrounding by obsequiousness and deferential young men and women. A serious illness certainly compounds the matter. What is the contrary case for staying on forever?
7.15.2005 10:23am
AL:
Really how ill is he? I don't see the fact that he went to the hospital for a day as anything serious. Thyroid cancer is pretty minor, as far as cancers go. My wife recently went through the same thing and barely had to take a day off work. Not good, but not that big a deal. I think that there has just been a lot of wishful thinking that he would retire.
7.15.2005 10:49am
Marc J. (mail):
No, of course I don't want people to overstay their usefulness. I'm just questioning your judgment that now, because of his illness, Rehnquist has overstayed his.

Of course, he very well may have, for a variety of reasons, but I don't think that the facts that he's old and missed arguments last term are sufficient.

It's interesting--most of the term limits proposals I've heard propose terms in the 15-18 year range. If that's what we're talking about, then not only Rehnquist, but also Stevens, Scalia, and possibly Kennedy and Souter, would be overdue. Justice Thomas could be up to leave next year.

I think that there are plausible arguments to be made in each of these cases, but I also think that they're pretty much the same as the best arguments that can be made for Rehnquist retiring. Again: depending on Rehnquist's actual health I could be wrong about this, but based on the information that I have I don't think that it's fair to place the retirement focus all on him. Easy, perhaps, but not fair.
7.15.2005 10:56am
Jeremy (mail):
I have a few comments related to Prof. Bernstein's remarks. He stated:

Is there some presumption in your mind that Justice SHOULD linger on until they become mentally incompetent or completely physically disabled?

I think we must distinguish between mentally incompetent and completely physically disabled. Mental incompetence is an excellent reason for retirement, of course, and is certainly a reason that Congress could exercise its power to remove a judge. But physical disability is a different story; so long as a justice is able to prepare opinions, I have no objection to him remaining on the court.

The Justices have a life appointment, but that doesn't mean they have an obligation to stay on forever.

This is a bit of a strawman. No one has argued that Rehnquist has an obligation to remain on the Court until his death.

I think there are some obvious reasons for wanting turnover on the Court, including not wanting to be governed by individuals who have not lived in the "real world" for decades, including having been surrounding by obsequiousness and deferential young men and women. A serious illness certainly compounds the matter.

The Framers did not share this enthusiasm for turnover on the Court.

What is the contrary case for staying on forever?

It is no secret that members of the Court want to advance their ideas about the law. My suspicion is that the Chief Justice would have announced his retirement but for O'Connor's resignation. He realizes that the prospect of two or three Senate confirmations would be a potential nightmare scenario and might severely limit the chances that the court will move in his jurisprudential direction after his retirement.

My guess, and of course it's just a guess, is that the Chief will retire after O'Connor's replacement is confirmed. If the Senate were a functional body, he probably would have retired in the past week, but the Bush administration probably asked him to wait until the end of the impending confirmation battle.
7.15.2005 11:45am
Syd (mail):
I'm not surprised by the announcement. Drudge has been wrong so many times on his predictions on Supreme Court retirements it'll be a surpiese when he's right, and with Novak agreeing with him...
7.15.2005 12:31pm
Robert Schwartz (mail):
I am not a doctor, and all I know about Rhenquist's health is what I read in the papers and see on TV. But like a large number of people my age I have lived through the final illnesses of a number of elderly loved ones.

From what I can see on TV, Rhenquist is a very sick man. I do not know how long he has to live nor the details of his illness, but I would be surprised if he were to live more than a couple of years, and if he were to regain any physical stamina.

Jeremy said: "we must distinguish between mentally incompetent and completely physically disabled." This is an appealing distinction for many purposes. I am sure there a number of quadraplegics who could be fine justices, but I think we can all understand that our minds are housed in our bodies and are affected by our health.

If we are weakened by disease, our ability to concentrate and think is adversely impacted. Similarlly if we are suffering from pain. Many cancer patients take large quantities of narcotic pain medicines, which can impair them mentally.

I would like to think that Rhenquist will recovery fully and return to the Court at full strength. I have my doubts. And I think that at this point it is incumbent on him to either resign or to instruct his physicians to explain to the American people, in some detail, why we should think that his illness was a temporary setback.
7.18.2005 2:39am