Rehnquist's second hospital visit restarts speculation on possible retirement

CRAWFORD, Texas -- Chief Justice William H. Rehnquist's second trip to the hospital in less than a month raises new questions about whether his battle with cancer will force him to leave the bench -- and who will fill his seat if he steps down.

Already, President Bush's decision to nominate John Roberts to the Supreme Court has been scrutinized for clues into the type of candidate he'd pick if he got a chance to name a chief justice.

The speculation intensified this week when Rehnquist, who suffers from thyroid cancer, was treated for a fever at Virginia Hospital Center in Arlington, Va., the same hospital where he spent two nights for observation and tests in July.

If Rehnquist is next to retire, the president not only would nominate a replacement but would have to decide whether to elevate a current justice to the top chair. Would he pick one of his favorite Supreme Court justices -- Antonin Scalia or Clarence Thomas? Would Bush instead promote Roberts, if the nominee is confirmed by the Senate in the meantime? Or would the president pick someone new?

"If a vacancy comes at the end of the court's term next June, then I think Roberts would be a very serious candidate to be chief justice, assuming he's confirmed," said Northwestern University law professor Steven Calabresi, a co-founder of the conservative Federalist Society. "If Roberts is confirmed in September and Rehnquist resigns a week later, I don't think they'd do Roberts."

Either way, because Bush selected a conservative, white male to replace retiring Justice Sandra Day O'Connor, he will face pressure to name a woman or a Hispanic next time.

Bush plucked Roberts from an ever-changing slate of about a dozen candidates, including five Bush interviewed in person. Court watchers are combing this slate for hints about whom Bush might pick next. Besides Roberts, Bush interviewed federal appellate judges Edith Clement and J. Harvie Wilkinson. The identity of the other two interviewees remains unclear.

The list of those who sat down for face-to-face talks with Bush, however, was not necessarily the president's short list. He said he needed to interview only candidates he did not already know. There has also been speculation that Bush already knew he wanted Roberts and was interviewing other candidates in case he was faced with filling another seat.

"He's certainly been criticized by Latinos, African-Americans and women for failing to take diversity into account in making the appointment," said Nan Aron with the liberal Alliance for Justice.

Before Bush nominated Roberts, almost six in 10 Americans polled said it was important for him to nominate a woman. Laura Bush urged her husband to appoint a woman to fill O'Connor's seat. And the retiring O'Connor, the first female justice, said Roberts was "first-rate" but not a woman.

Yet, the Roberts' nomination might also be evidence that Bush is not letting gender or ethnicity drive his decisions.

"At the end of the day, it turns out he chose the best lawyer he could find, and so what that tells me is that this president is willing to forgo some serious political considerations like naming a woman, naming a Hispanic to have his legacy be naming solid Supreme Court nominees," said Manuel Miranda, chairman of the Third Branch Conference, a group that advocates approval of Bush's judicial nominees.

Politics will play a role, too. If Bush wants to put an ultraconservative on the high court, his nominee will have to weather a confirmation brawl in the Senate. With approval ratings near the lowest of his presidency, Bush may not be ready for that.

"The fight would be over ideology, so the question is, 'Is he going to be in a position to want to buy a fight or not?' And we just don't know that," Georgetown University law professor Mark Tushnet said.

Those mentioned last month as serious contenders for O'Connor's spot included Larry Thompson, a former deputy attorney general who is a top lawyer for PepsiCo; Edith Jones, a judge on the 5th U.S. Circuit Court of Appeals in New Orleans; Samuel Alito, a federal appellate judge in Philadelphia; Michael Luttig, a federal appellate judge in Richmond, Va., and Mary Ann Glendon, a Harvard University professor.

Possible Hispanic candidates who have been mentioned include: Chief Judge Danny Boggs, a Cuba native, of the federal appeals court in Cincinnati, Florida Supreme Court Justice Raoul Cantero III and attorney Miguel Estrada. In Bush's first term, Democrats and liberal Latino groups thwarted Estrada's nomination to the appeals court for the District of Columbia.

Hoping Bush would name a Hispanic to the court, the Hispanic National Bar Association delivered a list of eight other candidates to the White House counsel's office in June. On that list: Attorney General Alberto Gonzales; appeals court judges Jose Alberto Cabranes, Julio Fuentes, Emilio Garza and Sonia Sotomayor, district court judges Victor Marrero and Federico Moreno and California Supreme Court Justice Carlos Moreno.

"We're viewing this as a temporary setback," Alan Varela, president of the association said of the Roberts' selection. "If the next vacancy is not far off, then our list is quite valid."

At the same time, the appointment of Roberts did nothing to lessen pressure from those who want Bush to nominate conservative judges. "We believe the president will stick with his promise to nominate justices in the mold of Scalia and Thomas," said Sean Rushton, director of the conservative Committee for Justice.