Order in the Court: Rehnquist and the '04 Vote

LBJ failed to get a successor to Warren confirmed in the election year of 1968.

LBJ failed to get a successor to Chief Justice Earl Warren confirmed in the election year of 1968. hide caption

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A local ticket comprised of two future presidential nominees.

A local ticket comprised of two future presidential nominees. hide caption

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 He lost in Connecticut after he lost in New York.

He lost in Connecticut after he lost in New York. hide caption

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Forty-four years ago today, King's release from prison was seen as a boost to JFK's candidacy.

Forty-four years ago today, King's release from prison was seen as a boost to JFK's candidacy. hide caption

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Q: What happens if William Rehnquist dies, President Bush nominates a new justice and, before s/he is confirmed, John Kerry wins the election? — Tamar Stieber, Santa Fe, N.M.

A: First, an update on Rehnquist's health. The chief justice is being treated for thyroid cancer. From what I've read, thyroid cancer is generally quite curable. But Rehnquist is 80 years old, and the fact that he needed a tracheotomy – a procedure that in effect opens a hole in the trachea to help breathing – may indicate that the cancer has advanced and is serious. At the same time, the court announced that Rehnquist is expected to return to work by next week.

Now, the political. Rehnquist, first appointed by President Nixon in 1972 and elevated to chief justice by President Reagan in '86, is a strong conservative; he was one of two dissenting votes in the 1973 Roe v. Wade decision affirming abortion rights. It is a certainty that even if Rehnquist were to die or resign, Bush would not nominate a successor, nor would the Senate act to confirm a successor prior to the election. Democrats in the Senate would forestall any action until the election results were known. If Bush were to win a second term, only then would he attempt to name someone to the court... and given what we've seen thus far, the Democrats could very well be expected to filibuster the nomination if they didn't like the nominee's credentials. Of course, if Kerry won, Senate Republicans — in the majority or minority — would most likely duplicate the Democrats' tactics.

Bush naming a conservative to succeed Rehnquist would not alter the makeup of the court. Kerry, on the other hand, has said he would not name a justice who was opposed to Roe, and thus would have a more significant role in shaping the court were Rehnquist to leave. It's been a decade since a new member was named to the court, the longest span without any change since 1823.

The last time a prospective nominee to the court became an issue in a presidential campaign came in 1968. On June 13 of that year, Chief Justice Earl Warren announced his resignation. Lyndon Johnson, by that time a lame duck president, quickly nominated both Abe Fortas, who was a member of the court, as chief justice, and Judge Homer Thornberry of the 5th Circuit Court of Appeals as an associate justice to replace Fortas. The Fortas and Thornberry nominations were killed by a coalition of Republicans and Southern Democrats in the Senate, the former holding them up because they wanted to wait for the election results and the latter — led by senators James Eastland (D-Miss.) and Sam Ervin (D-N.C.) – opposing them for ideological reasons.

Q: Your Oct. 12 column talks about the presidential election being thrown into the House in the event of an electoral-vote tie. Would it be the newly elected House? You say that an election decided by the House would go to Bush, but a lot of the polls are showing the Democrats ahead in the House race by a small percentage. — Paul Duran, Chicago, Ill.

A: There are different interpretations as to whether it would be the newly elected House. It's my understanding that it would be. But I've also heard it said that if the Democrats were to win control of the House on Nov. 2, the GOP majority 108th Congress could theoretically vote to have a lame-duck session make the choice. My guess, though, is that the Republicans would invite an unprecedented backlash from the public and consequently would never risk pulling such a move.

For the record, it was a lame-duck House that picked Thomas Jefferson over Aaron Burr in the election of 1800.

More to the point, it doesn't look at this stage that the Democrats are going to recapture the House this year. Check out my final predictions in next week's column, but as of now I wouldn't be surprised if the Republicans picked up a seat or three.

Q: If Bush wins, he will be the first president to win a second term having won his first by losing the popular vote. It is also interesting to note that two of the three single-term Electoral College presidents included the only other son (John Quincy Adams) and the only presidential grandson (Benjamin Harrison). Thus, I suggest that the Electoral College be known as the "Presidential Offspring Protection Act" (POPA for short). — Barry Speert, Overland Park, Kan.

A: I'm speechless.

Q: In 1983 and 1984, Michael Dukakis and John Kerry were respectively the governor and lieutenant governor of Massachusetts; each later became their party's presidential nominee. Are they the first pair of top state officeholders to become said nominees? — Daniel Schlozman, Cambridge, Mass.

A: Yes. And if Kerry wins, he will become only the third lieutenant governor to be elected president. The others, Warren Harding (Ohio) and Calvin Coolidge (Mass.), also happened to form the 1920 Republican presidential ticket.

Q: Did John Kerry annul his first marriage? — Hubert Van Gent, St. Louis, Mo.

A: Yes. John Kerry and Julia Thorne, who were married on May 23, 1970, separated in 1982 and were divorced on July 25, 1988. In 1997, over his ex-wife's objections, Kerry — by this time already married to Teresa Heinz — sought and got his first marriage annulled.

Q: If Alan Keyes loses to Barack Obama in Illinois, will he be the first Senate candidate to lose in two different states? Or will he be the first to lose to three different senators who will all serve together? - Tom Bowen, Homer Glen, Ill.

A: No to the first part of your question. I can think of at least three Senate candidates who lost in two different states. James Buckley was elected in New York on the Conservative Party line in 1970 and defeated for re-election six years later as a Republican-Conservative. In 1980, he was the GOP nominee for an open seat in Connecticut — his real home — and lost to then-Rep. Chris Dodd (D). Bill Brock, a Republican congressman from Tennessee, was elected to the Senate in '70, defeated in '76, and found himself as the GOP nominee against Maryland Democratic Sen. Paul Sarbanes in 1994. Finally, Endicott Peabody — a Democratic former governor of Massachusetts — lost a Senate bid in his home state in 1966 and lost again 20 years later to Warren Rudman (R) in New Hampshire. (Republican Bob Smith, a former New Hampshire senator, had sought an open seat this year in Florida before dropping out.)

Keyes, who lost to Maryland senators Paul Sarbanes in 1988 and Barbara Mikulski in 1992, is considered an all-but-certain loser to Obama in Illinois on Nov. 2. I believe (though I'm not certain) that he would be the first to lose to three senators who will all serve together. Buckley did lose to three senators — he ran unsuccessfully as a Conservative against then-Sen. Jacob Javits (R) in '68, was unseated in '76 by Daniel Patrick Moynihan (D) and lost to Dodd in '80. But the year he lost to Dodd, Javits was losing his own seat, a loss that robbed Buckley of having the distinction to lose to three senators serving at the same time.

Q: How often has the shorter candidate been elected president? — John Brison, San Luis Obispo, Calif.

A: Generally, the taller candidate wins presidential elections, though there have been exceptions, such as when Gerald Ford, at 6'1", lost to the 5'9" Jimmy Carter in 1976. I've also seen references to the 1940 election, when Franklin D. Roosevelt, who was 6'2", defeated Wendell Willkie, said to be a half-inch taller. In the last election, Al Gore was one inch taller than George W. Bush. Gore did happen to win the popular vote.

Q: If Christine Gregoire (D) is elected governor in Washington, will this be the first female trifecta (governor, both Senate seats) ever? — Ronald May, Jerusalem, Israel

A: Yes. Only four states have ever had two female senators at the same time: California, with Barbara Boxer and Dianne Feinstein (1993-present); Kansas, with Nancy Kassebaum and Sheila Frahm (1996); Maine, with Olympia Snowe and Susan Collins (1997-present); and Washington, with senators Patty Murray and Maria Cantwell (2001-present).

Q: Do you think there is any chance Sen. Barbara Mikulski (D-Md.) will lose her seat? — Matt Haag, Baltimore, Md.

A: I'd say the chances are slim and none, and I'm leaning more to none than slim. Check out next week's column, on Monday, for a complete list of election picks.

This Day in Campaign History: Dr. Martin Luther King Jr. is released from jail, one day after his wife receives a phone call of concern from Democratic presidential candidate John F. Kennedy. JFK's call is widely reported in the press and is thought to damage the chances of Vice President Richard Nixon getting a sizable black vote in the following week's election (Oct. 27, 1960).

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