Vacancy Could Doom BCRA
Roll Call Staff
The possibility that one or more Supreme Court justices could retire prior to the high court’s consideration of the new campaign finance law is sparking concern among legal experts that such a development could leave the high-profile case one judge short.
Amid speculation that Chief Justice William Rehnquist may hang up his robe when the court’s current term ends in July, and in light of the Democratic-led blockade of judicial nominees in the Senate, some campaign finance lawyers are wondering if the Bipartisan Campaign Reform Act might end up being decided by an eight-member court, or if such a court would be able to come to any decision at all.
“This whole scenario that somehow the court is going to consider this quickly next fall seems to depend on the idea that there will be a successor on hand” to replace Rehnquist or any other potential retiree, explained one lawyer who has been working with plaintiffs in the lawsuit.
“If there is an extended vacancy, which seems likely ... you’re talking about the possibility of a court with eight justices and potentially a deadlock,” continued the attorney, who like most interviewed for this article declined to speak on the record.
Though Rehnquist’s plans remain anyone’s guess at this point, last year’s return of the Senate to GOP control and a visit that Rehnquist made to the White House after the elections have fueled speculation that the 78-year-old chief justice may be preparing to retire after 30 years on the bench at the end of this term.
Some are placing bets on whether Justices Sandra Day O’Connor or John Paul Stevens might also choose to hang up their robes for good — but it’s the possibility of a Rehnquist retirement that seems to be arousing the most concern.
Loyola Law School Professor Rick Hasen predicts that Rehnquist’s potential retirement could be an enormous blow to supporters of the McCain-Feingold law, named after its chief sponsors, Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.).
Explained Hasen: “His vote is very important for the reform community. It somewhat puts the community in somewhat of an ironic position. Chief Justice Rehnquist is no liberal, yet on this issue, he has been one of the strongest supporters of campaign finance regulation, especially as it has been targeted at corporations and obviously that is a key part of the BCRA here.”
On the other hand, Rehnquist himself shows no overt signs of wanting to retire and there is a school of thought that he might in fact want to stick around so that he can in fact play a role in deciding the fate of campaign finance reform.
But if the fate of the McCain-Feingold law is squarely in Rehnquist’s hands, the fate of Rehnquist’s possible replacement could depend a great deal upon folks like Feingold, who is the ranking member on the Judiciary subcommittee on the Constitution, civil rights and property rights.
If Rehnquist were to retire, “We can expect that if President Bush nominates someone who the [Democrats] view as not being centrist, there’s likely to be a confirmation fight,” Hasen concluded.
Indeed, at a hearing this week on the breakdown in negotiations on judicial nominations, Feingold defended Democrats’ right to filibuster judicial nominees with “extreme views” that the “White House seems intent” on pushing through “in the shortest possible time.”
“For those of us who take the Constitution seriously, it is odd to hear colleagues essentially arguing that one is violating one’s oath of office by voting not to end debate on a nomination,” Feingold said.
He testified that “the majority does not have a constitutional right to confirm a nominee as the title of the hearing implies. I am sure we will hear more on this from our witnesses today, but I must say I am eager to hear the argument that would overturn the practices of the Senate dating back more than a century.”
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