Supreme scenarios


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Tim Grieve
October 26, 2004 4:31PM (UTC)

Week after week, groups like People for the American Way have tried to remind reporters -- and through them, the public -- that control of the Supreme Court is at stake in next Tuesday's election. It's almost certainly true, but concerns about the judicial branch have a hard time getting air in a race consumed so completely by the economy and the war.

You might have expected that to change with Monday's news that Chief Justice William Rehnquist has thyroid cancer. But the Kerry campaign said nothing about it. Kerry didn't mention Rehnquist or the court on the stump, and Mike McCurry repeatedly told reporters traveling with the campaign that he didn't know enough about Rehnquist's health to comment.

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Here's what we know.

1. If Rehnquist were to resign or -- how to put this gently? -- otherwise leave the court before Jan. 20, Bush would have the constitutional power to nominate someone to replace him.

2. Whether the Senate would act on Bush's choice before Jan. 20 depends on who wins next week. If Bush wins, there's no reason to delay consideration (assuming, of course, that there's no significant shift in Senate power on Nov. 2). If Bush loses, he could send up a nominee, but Senate Democrats would certainly stall consideration in order to let Kerry make his own pick.

3. If the election ends up in the courts and Rehnquist is either temporarily or permanently indisposed, well, who knows? An election case can't get to the Supreme Court unless four justices vote to grant certiorari. Without Rehnquist, the Republicans would have only four of the five who stepped in to save George Bush from the Florida Supreme Court in 2000. You can get a case before the Supreme Court with four votes out of eight, but you can't win one. If the Supreme Court hears a case with only eight justices and those eight split 4-4, the decision from the lower court stands. If that had happened four years ago, President Al Gore might well be running for re-election today.


Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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