The Nine [133]
But Rehnquist did not even leave the hospital until October 29, and he was clearly in no condition to return to the bench. On November 1, he released a statement that said his original prediction of a return was “too optimistic” and that he would be receiving “radiation and chemotherapy treatments on an outpatient basis.” Unlike the first announcement, this one came directly from Rehnquist’s chambers, not the public information staff, illustrating how few people at the Court knew anything about his condition. But the length of Rehnquist’s absence and the nature of his treatment left the impression, which was correct, that he had the devastating, anaplastic version of the disease. On the morning of November 1, John Paul Stevens, the senior associate justice, presided over the arguments, leaving the center seat conspicuously and ominously vacant.
As the nation voted the following day, Rehnquist’s colleagues inferred what the chief justice already knew—that he was dying.
19
“A GREAT PRIVILEGE, INDEED”
On November 2, 2004, George W. Bush won a narrow victory over John Kerry, and this time the president needed no assistance from the Supreme Court. If Bush had lost, he would have joined Jimmy Carter as the only presidents in American history to serve full terms without having the chance to make an appointment to the Court. But the sudden announcement of Rehnquist’s illness on the eve of the election made clear that Bush would soon have such an opportunity. It took less than a day for the political tension surrounding the appointment and confirmation process, which had been long dormant, to explode.
Also on that Election Day, Arlen Specter won his fifth term as a senator from Pennsylvania. A noted curmudgeon, longer on smarts than charm, Specter belonged to a vanishing species in Congress, the moderate Republican. When he was first elected, in 1980, the Senate abounded in such figures, like Robert Packwood, Mark Hatfield, Lowell Weicker, Charles Mathias, and John Heinz, but by 2004 the rightward tilt of the national GOP had pushed the number of moderates almost to insignificance. Specter had moved so far away from the base of his party that he drew a conservative challenger in a Republican primary, who came much closer to beating him than the Democrat did in the general election.
On Wednesday, November 3, Specter held his traditional post–Election Day news conference in Philadelphia. He was asked about possible Supreme Court appointments, an issue that suddenly had special resonance because Specter was finally in line to become chairman of the Senate Judiciary Committee. Repeating a view he had expressed many times, Specter told the reporters he regarded the protection of abortion rights established by Roe v. Wade as “inviolate,” and he suggested that “nobody can be confirmed today” who didn’t share that opinion. After making the statement, Specter didn’t give it a second thought.
But Specter was about to learn once more how much his party had changed. Virtually overnight, as news of Specter’s statement about Roe spread, the conservative groups that had led the primary challenge against Specter, such as Focus on the Family, demanded that he be denied the chairmanship. Protesters chanted outside his office, and telephone calls inundated the Senate switchboards.