Chief Justice Rehnquist hospitalized with cancer

WASHINGTON – Chief Justice William H. Rehnquist has thyroid cancer, a stunning disclosure Monday that caught even the closest Supreme Court observers off-guard and injected into the presidential campaign the issue of appointments to the United States’ most important legal panel.

Rehnquist’s diagnosis was announced in a terse statement issued by the Supreme Court. It said the 80-year-old widower who has led the court for a generation underwent a tracheotomy over the weekend and was hospitalized but is expected to be back at work next week when the court resumes hearing cases.

Left unsaid was Rehnquist’s condition at the National Naval Medical Center in suburban Bethesda, Md., and what type of thyroid cancer he has. About 23,600 people develop various types of thyroid cancer each year in the United States. Most types are considered treatable, but many variables exist, including age and how quickly the cancer is found.

Dr. Yosef Krespi, chairman of otolaryngology at St. Luke’s-Roosevelt Hospital in New York, said only aggressive or complicated thyroid cancer requires a tracheotomy. Other physicians said the procedure sometimes is done as part of routine thyroid surgery.

Rehnquist’s hospitalization gave new prominence to a campaign issue that has been overshadowed by the war on terror. The next president probably will name one or more justices to a court that has been deeply divided in recent years on issues as varied as abortion and the 2000 presidential election itself. President Bush won that after the Supreme Court issued a key 5-4 decision in his favor, with Rehnquist as part of the majority.

The last court vacancy occurred in 1994, the longest stretch of continuity in modern history. Only one of the court’s nine members – Clarence Thomas, appointed by former President Bush – is under age 65.

“The Supreme Court has always been in play. This will just increase the salience,” said Nelson Polsby, a political science professor at the University of California at Berkeley and co-author of “Presidential Elections.”

Rehnquist, a conservative named to the court in 1972 by President Nixon and elevated to chief justice by President Reagan in 1986, has had a series of health problems, including chronic back pain and a torn leg tendon that required surgery in 2002.

He was admitted to the hospital Friday and doctors performed the tracheotomy Saturday. During that procedure, a tube is inserted into the patient’s throat either to relieve a breathing obstruction or as preparation for surgery. The court did not explain why it was done on Rehnquist.

Edward Lazarus, a Los Angeles attorney and former Supreme Court clerk, said the secrecy is not surprising.

“The court doesn’t appreciate being at the center of the political storm. It’s an uncomfortable situation,” he said.

Rehnquist is among the fiercest questioners during oral arguments. Dr. Herman Kattlove of the American Cancer Society said Rehnquist should be able to speak normally after the breathing tube is removed.

Should Rehnquist be too sick to participate in cases, the other eight justices would act without him. Tie votes would uphold the lower court’s decision.

Three other members of the high court have had bouts with cancer. Justice John Paul Stevens, the oldest at 84, was treated for prostate cancer. Justice Sandra Day O’Connor had breast cancer, and Justice Ruth Bader Ginsburg had colon cancer.

Rehnquist turned 80 this month. The only older chief justice was Roger Taney, who presided over the court in the mid-1800s until his death at 87.

Rehnquist is a smoker known as a stern and efficient taskmaster at the court and a fierce competitor on the tennis court and at the poker table. In recent months, his tennis is said to have been replaced with walks.

He has defied retirement rumors even as some observers of the court have wondered whether his conservative legacy – empowering states, limiting abortion and preserving the death penalty – might have run its course.

No matter who is elected president next week, a vacancy on the court is likely during the next presidential term. And confirmation for any nominee is bound to be contentious due to the close party split in the Senate.

President Bush and Democratic challenger Sen. John Kerry have avoided describing a litmus test for a Supreme Court nomination, although their differences on abortion are cut along partisan lines. The future of Roe v. Wade, the three-decade-old ruling that affirmed the legality of abortion, is the most visible symbol of the court’s ideological split.

Neither candidate has suggested names for possible nomination if a Supreme Court seat should become vacant during the next four years, but both have spoken about judges’ approaches to specific issues.

About gay marriage, Bush said at the Republican convention: “I support the protection of marriage against activist judges, and I will continue to appoint federal judges who know the difference between personal opinion and the strict interpretation of the law.”

Kerry has said he would nominate as Supreme Court justices only people who support abortion rights, and his campaign Web site says he would name “judges with a record of enforcing the nation’s civil rights and anti-discrimination laws.”