The Nine [134]
At a press conference the next day, Specter made the terms public. Introduced by Orrin Hatch, who was barred by term limits from continuing as Judiciary chairman, Specter explained the deal. “I have not and would not use a litmus test to deny confirmation to prolife nominees,” Specter said in the weary monotone of a Soviet prisoner forced to confess his ideological errors. “I have voted for all of President Bush’s judicial nominees in committee and on the floor, and I have no reason to believe that I’ll be unable to support any individual President Bush finds worthy of nomination.”
Specter had survived to serve as chairman of the committee, but the message to him was unmistakable. Conservatives had waited fourteen years for a Republican president to nominate someone to the Supreme Court, and this time they wanted a true believer. Seven of the nine current justices had been appointed by Republicans—and still the Court continued to disappoint conservatives. The core of the president’s party would accept only Supreme Court nominees who embraced the conservative line, especially on Roe v. Wade, Arlen Specter notwithstanding. Even before there was a vacancy, much less a nomination, conservative activists like James Dobson and Jay Sekulow, empowered by their critical role in Bush’s reelection, were demonstrating precisely what mattered most to them—control of the Supreme Court.
Two months later, the world saw William Rehnquist for the first time since his illness had been announced in the fall. On January 20, 2005, Rehnquist made an unsteady journey down the platform steps in front of the Capitol to administer the oath of office to George W. Bush. With his administrative assistant, Sally Rider, closely monitoring his procession, Rehnquist arrived well after his colleagues and the other guests had taken their places. Chemotherapy had reduced his hair to a few wisps, and the tracheotomy tube, which was still in place, made his voice hard to hear, but the chief had the fortitude to complete his duty. After Bush repeated, “So help me God,” an affectation said to have been added to the constitutional oath by George Washington and recited ever since, Rehnquist told the president, “Congratulations.” This was a different salute from the ambiguous “Good luck” he offered to Bill Clinton on January 20, 1997, a week after the Court heard arguments in the Paula Jones case. Rehnquist left before Bush’s inaugural address, having been present for only thirteen minutes.
No one studied the chief more carefully than the other eight justices. Only Stevens and O’Connor had been allowed to make brief visits to his home. The others had not seen him at all. Rehnquist listened to tapes of the oral arguments, cast his votes by memo, and continued to make assignments from home. In his absence, Stevens presided over the conferences and the oral arguments. Even in good health, Rehnquist preferred to communicate by memo with all but his immediate staff, so the Court functioned normally even though he was not on the premises. Rehnquist had a strong sense of responsibility about his obligations, and he was meticulous about making sure that the Court did not suffer from his illness. He gave no hint if he was thinking of resigning.
As in most other terms, the justices disposed of the easy cases in its first few months. Year in and year out, about 40 percent of the Court’s opinions are unanimous, and many more draw just a mild dissent or two. During the first months of Rehnquist’s absence, the Court did a pretty good job of avoiding controversy, with