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Vacancy Could Doom BCRA

May 8, 2003
By Amy Keller, 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.”
Senate wrangling over judicial appointments has stirred the ire of some members of the Supreme Court, including Justice Anthony Kennedy, who issued a warning to Members of Congress who have obstructed the appointment of federal judges.
“I think it’s time for the parties to come together,” Kennedy said in a speech last month at University of Virginia Law School.
He added that Republicans and Democrats “had better start thinking about the dangers to judicial independence from insisting on certain political views.”
Nonetheless, most in the legal community believe that short of receiving a recess appointment by the president, any Supreme Court nominee could encounter similar difficulties and that could leave the fate of soft money and issue ads up to an eight-member court.
If eight Supreme Court justices were to end up deadlocked 4-4 on campaign finance issues, last week’s controversial lower court decision, which struck some provisions in the soft-money ban and altered how issue ads are regulated, would become the rule of the land for the foreseeable future.
One D.C.-based GOP attorney who is also involved in the case said there is a “real likelihood” that any Bush nominee to the Supreme Court could face a long and sticky confirmation process given the current state of regard to judicial nominees.
“But I would be surprised if Justice Rehnquist or anyone else retires before September or October, when this is likely to be heard or decided by year-end,” the lawyer continued. “In other words, a retirement could come but not be effective until a later date — and this case would be done by then, I presume.”
Several sources noted that the Supreme Court — which has not yet established a calendar for proceedings in the case — has given signals that it could choose to address the campaign finance case in a more expeditious manner, if parties in the case simply make that request.
Indeed, a quick hearing of the case would eliminate worries about potential retirements, but with each passing day that scenario appears less likely and many attorneys involved in the case said they are resigned to the fact that the case won’t be taken up until the next term.
As reporter Tony Mauro recently wrote for American Lawyer Media, June is a “crunch time for the justices, with complex decisions pending on issues including gay rights and affirmative action,” not to mention the fact that most of the justices have travel plans already in place.
Rehnquist and Kennedy are both headed to Austria in early July to teach law school classes.
Sen. Mitch McConnell (R-Ky.), the lead plaintiff in the effort to have the law struck down, declined to make any educated guesses about the makeup of the court or how it might rule.
“It’s not possible to ascertain what the outcome of the case will be under the current court,” said McConnell.
In terms of a reconfigured court,
McConnell said “there are so many variables, it’s impossible to ascertain.”
In other developments in the court case this week, the National Rifle Association filed a motion for a stay of the three-judge district court panel’s decision as it relates to issue advocacy.
Stating the the court’s modification of Title II’s definition of electioneering communications “immediately threatens the NRA’s speech in support of gun legislation now pending in Congress,” the filing asks the court to set aside the court’s finding and instead restore Congress’ definition of electioneering communication, which relies on defining election activity within 30- and 60-day windows.
The Republican National Committee and the AFL-CIO also filed their notices of appeal in the case Wednesday.
Paul Kane contributed to this report.

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