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When Chief Justice William Rehnquist’s law clerks held their annual reunion a few months back, nearly all of his former clerks were in attendance — an unusually high turnout. But does that mean it was a farewell reunion, the last one before he fulfills the prediction of pundits by retiring next spring? Not so fast, say clerks who were on hand. “It celebrated his 30th anniversary on the Court,” says Notre Dame Law School professor Richard Garnett, a 1996 Rehnquist law clerk. “But there was no ‘swan song’ feel to it, no reason not to think there will be a 31st year on the Court.” Garnett’s comment is but one more drop of rain on the parade of conventional wisdom that has Rehnquist retiring at the end of the term that begins today. While Court-watchers and political prognosticators lay out all the reasons why logic and timing dictate a Rehnquist retirement next summer, there is one small problem with the theory: Rehnquist himself shows no sign of preparing, or wanting, to leave. It still may happen, of course, especially if the Senate returns to Republican control after the November elections. But rarely has a retirement scenario gathered such momentum unsupported by any hard information about the justice involved. The same flaw colors theories about whether Justices Sandra Day O’Connor and John Paul Stevens will leave, but speculation about Rehnquist is the most intense. People who spent time with him during the Court’s summer recess say Rehnquist, who turned 78 on Oct. 1, is his usual low-key, basically optimistic self, vigorous to the point of playing tennis regularly with his clerks, and uttering not a word about possible retirement. In mid-September he visited the University of Notre Dame to watch the Fighting Irish beat the University of Michigan in football, and earlier in the summer he taught in Strasbourg, France, in a program sponsored by the Dickinson School of Law — not the excursions of someone intent on slowing down. Rehnquist has hired a full complement of law clerks for the term that begins in October 2003, and has done nothing else to suggest that he is contemplating departure. Court insiders note, however, that hiring law clerks for future terms is an imperfect signal of future plans. When justices do retire, it is not uncommon for them to leave behind freshly hired clerks, who are usually doled out to other justices. And others who know Rehnquist say he is not the sort of individual who would consult others widely about his personal plans. “The bottom line is that nobody knows what he is going to do,” says one Rehnquist friend. “The fact is, he may not know.” POLITICAL THEORY The resulting uncertainty is enough to fuel wide speculation that Rehnquist will retire at the end of the term, in spite of signs to the contrary. Two main rationales, one political and the other jurisprudential, are usually offered. The first is that Rehnquist, perhaps more than most justices, would time his departure to maximize the chances that a Republican president would replace him with a like-minded conservative. Especially if the Senate returns to Republican control in the November elections, President George W. Bush could have an easier time replacing Rehnquist with a conservative next summer than any other time in his first term. The rough sledding that Bush nominees for lower courts have had in recent months is widely viewed as a practice run for how a Bush Supreme Court nominee might be treated by a Democrat-controlled Senate. “If Rehnquist wants to give the president as much discretion as possible in naming his replacement, the window of opportunity presents itself next summer,” says University of Connecticut political scientist David Yalof, author of Pursuit of Justices, a study of the nomination process since World War II. If Rehnquist waits instead until 2004 to retire, the political tension that grips Washington during a presidential election campaign would complicate confirmation for almost any successor. They might not use it, but Democrats would have the numerical strength to filibuster a Bush nominee to death. Chief Justice Earl Warren’s decision to retire during the 1968 presidential election season, coupled with ethical problems that dogged his nominated successor, Abe Fortas, turned into a political nightmare for President Lyndon Johnson. President Richard Nixon ended up picking Warren’s replacement, Warren Burger. Yalof and others say there is ample precedent for justices weighing political timing in their departure decisions. One recent instance was Kennedy appointee Byron White, who considered retiring in 1978 because he was worried that Democratic President Jimmy Carter would not be re-elected, according to White biographer Dennis Hutchinson, law professor at the University of Chicago. Instead, White hung on until Bill Clinton became the next Democrat to occupy the White House, finally retiring in 1993. “He had health issues, but the fact that the president was a Democrat made it propitious,” says Hutchinson. Rehnquist himself alluded to politics as a relevant factor during a PBS interview last year when he said that, historically, justices have a “slight preference” for leaving when a president of their party is in the White House. When pressed by interviewer Charlie Rose on whether he himself would be more likely to leave during a Republican administration, Rehnquist insisted he was making only a “general statement.” David Atkinson, who studied the departure decisions of all justices in his book Leaving the Bench, says it is hard to isolate politics from the other considerations that lead justices to retire. “There’s a melding of factors,” Atkinson says, including health and legacy — as well as politics. “Rehnquist seems to be a fairly partisan individual, so I think political party would be important,” says Atkinson. “But justices sometimes get a sense of indispensability that comes into play as well.” At least one veteran Court-watcher thinks politics might compel Rehnquist not to leave next summer. Chicago’s Hutchinson thinks the Court’s decision in Bush v. Gore, which had the effect of declaring Bush the winner of the 2000 election, is “an ugly ghost that still hangs over a lot of things.” In Hutchinson’s view, especially if Republicans win back control of the Senate, a Rehnquist departure timed for next summer might come across to the public as a calculating and unseemly move. “It would look bad for the Court,” Hutchinson says. But Hutchinson acknowledges his is a minority view. LEGAL THEORY Some of those who believe Rehnquist will leave at the end of the current term also argue that he will do so because, by and large, his goals will have been met. Once a lone dissenter on issues of federalism, Rehnquist now commands a majority — albeit a slim one — that has reined in Congress and restored some “dignity” to the states. “I think it will be the chief’s last term, and I think he is going to go out with a huge bang,” says Supreme Court practitioner Thomas Goldstein of D.C.’s Goldstein & Howe. Cases presenting issues ranging from affirmative action to campaign finance reform will enable Rehnquist to tie up doctrinal loose ends so that next year, Goldstein says, commentators will be “talking about how he really got everything he wanted.” Scholars are also beginning to talk about the Rehnquist Court as one with definable, discrete themes that Rehnquist could look back on with satisfaction or at least a sense of completion. In a recent California Law Review article that has gotten considerable attention, Northwestern University law professor John McGinnis argues that “the Rehnquist Court is moving toward an encompassing jurisprudence, just as the Warren Court did.” As McGinnis sees it, the unifying theme of the Rehnquist Court is an embrace of a decentralized democracy that relies on states, juries, and private institutions like churches and associations — rather than the national government — to create social norms and vindicate individual liberties. In an interview last week, McGinnis said he too thinks Rehnquist will retire at the end of the term. “He has left a very clear legacy and completely changed the direction of the Court, in a way that the Burger Court didn’t,” said McGinnis. “If he left tomorrow, he would leave behind a coherent jurisprudence.” Former Acting Solicitor General Walter Dellinger, law professor at Duke University and head of the appellate section at O’Melveny & Myers, also sees the maturing of Rehnquist Court doctrines that will stand as a powerful legacy should Rehnquist retire. In addition to its focus on federalism, Dellinger says the Rehnquist Court will be remembered for its view of the Supreme Court as the pre-eminent institution of government. “If this next term completes the Rehnquist Court, it is quite clear that there are three dominant chief justices of American history, and they are John Marshall, Earl Warren, and William H. Rehnquist,” says Dellinger. “I think that there’s just no question that he’s of enormous historical importance.” But before memorializing the Rehnquist Court with too much finality, Dellinger cautions that Rehnquist “shows no sign of slowing down whatsoever. I don’t actually see anybody on the Court who, in spite of all the speculation, looks to me like they’re not having a great time and are not full of energy. So it is not at all clear to me that we will see any resignations any time soon. It’s a job that is very good for older people.”

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