Rehnquist Guessing Game Rejoined

Chief Justice William H. Rehnquist's latest hospitalization has added more intrigue to the guessing game about his retirement prospects.

Despite having thyroid cancer, the 80-year-old Rehnquist has maintained a regular work routine and defied expectations that bad health would force him to leave the court.

A court spokeswoman said Wednesday that he was taken by ambulance to Virginia Hospital Center in Arlington, Va., on Tuesday night for a fever and admitted for observation and tests. Spokeswoman Kathy Arberg would not release other information, including his condition.

"This hospitalization has to shake his faith a little bit," said Stephen Wermiel, an American University law professor who specializes in the Supreme Court.

Rehnquist was first hospitalized in October, when he underwent a tracheotomy. He has said very little publicly about his prognosis and nothing about his future at the court. He's received chemotherapy and radiation.

A month ago, most court watchers thought Rehnquist's retirement was inevitable. But many justices in history have kept working until the end. There have been just 15 previous chief justices, and eight served until their deaths.

"I understand why he wouldn't want to retire. If he quit he'd feel like he was taking one step in the grave," said Richard Friedman, a law professor at the University of Michigan. "He's probably enjoying all the fuss."

President Bush initially was unaware of Rehnquist's hospitalization, spokesman Scott McClellan said. Mr. Bush was in the Oval Office when Andy Card, the White House chief of staff, and McClellan informed him at midafternoon of news reports that Rehnquist was ill.

There was no indication the news would affect the president's selection of a candidate — or the timing of an announcement — for replacing Justice Sandra Day O'Connor, who announced earlier this month that she was stepping down.

The chief justice had been going to his office at the court daily but did not show up as usual Wednesday morning. Members of the news media near his residence saw a court police officer make several trips to the house, leaving each time with various personal items. First the officer carried out Rehnquist's distinctive cane and a shirt. Later, he brought out other clothing.

In response to queries, Arberg issued a two-sentence statement saying Rehnquist was hospitalized for a fever and was undergoing tests.

It was the second time in less than four months that Rehnquist was taken by ambulance to the hospital. In March, he was taken in with breathing problems. He did not stay overnight then.

Rehnquist has a tracheotomy tube that helps him breathe. He has been treated since October for thyroid cancer and was absent from the bench for five months.

The chief justice has refused to say whether he plans to retire, telling reporters camped outside his house last week: "That's for me to know and you to find out."

Addressing the retirement speculation, CBS News Chief White House Correspondent John Roberts notes that having a second spot to fill on the bench might make it easier on the president.

"Having to fill two positions gives the president latitude to expand his horizons,'' says Roberts.

"Simply replacing Sandra Day O'Connor presents a host of complications for the President - does he name a conservative and provoke a fight with Democrats, or does he name a moderate and provoke a fight with his own party's right wing? Either choice will be problematic. It's no secret that President Bush would love to put his long time friend Alberto Gonzales on the court - but conservatives have branded him 'unacceptable'."

One scenario, Roberts suggests, might be that tje president nominates Alberto Gonzales to fill O'Connor's position: liberals are satisfied, but conservatives angry.

The president then chooses a known conservative like J. Michael Luttig to fill the vacancy left by Rehnquist – but only as an associate justice because he then nominates Antonin Scalia for chief justice. Conservatives are happy again.

Of course, that means three confirmation battles before the first Monday in October, Roberts notes. Is that a political gamble President Bush would want to risk?

Should Rehnquist return for another court term, such speculation would be moot.

Dr. Kenneth Burman, a thyroid specialist at Washington Hospital Center who is not involved in Rehnquist's treatment, said it was not unusual for a cancer patient to check into the hospital with fever. "It could be a minor local infection around the tracheotomy tube," he said.

A more serious possibility, he said, is that the cancer has spread and caused infection. Other possibilities, he said, are pneumonia, allergies to medicine or reaction to chemotherapy.

So far, the Supreme Court has released only the barest of details about Rehnquist's health. Among the unanswered questions is whether he has the most serious type of thyroid cancer, which is often fatal within months.