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New visit by Rehnquist to hospital rekindles replacement talk

CRAWFORD, Texas -- Chief Justice William H. Rehnquist's second trip to the hospital in less than a month raises new questions about whether his battle with cancer will force him to leave the bench -- and who will fill his seat if he steps down.

Already, President Bush's decision to nominate John Roberts to the Supreme Court has been scrutinized for clues into the type of candidate he'd pick if he got a chance to name a chief justice.

The speculation intensified this week when Rehnquist, who suffers from thyroid cancer, was treated for a fever at Virginia Hospital Center in Arlington, Va., the same hospital where he spent two nights last month.

If Rehnquist is next to retire, the president not only would nominate a replacement but would have to decide whether to elevate a current justice to the top chair. Would he pick one of his favorite Supreme Court justices -- Antonin Scalia or Clarence Thomas? Would Bush instead promote Roberts, if the nominee is confirmed by the Senate in the meantime? Or would the president pick someone new?

''If a vacancy comes at the end of the court's term next June, then I think Roberts would be a very serious candidate to be chief justice, assuming he's confirmed," said Northwestern University law professor Steven Calabresi, a cofounder of the conservative Federalist Society. ''If Roberts is confirmed in September and Rehnquist resigns a week later, I don't think they'd do Roberts."

Either way, because Bush selected a conservative, white male to replace retiring Justice Sandra Day O'Connor, he will face pressure to name a woman or a Hispanic next time. When O'Connor leaves, Justice Ruth Bader Ginsburg, who was appointed by President Clinton, will be the sole female on the court.

Bush plucked Roberts from an ever-changing slate of about a dozen candidates, including five Bush interviewed in person. Court watchers are combing this slate for hints about whom Bush might pick next. Besides Roberts, Bush interviewed federal appellate judges Edith Clement and J. Harvie Wilkinson. The identity of the other two interviewees remains unclear.

''He's certainly been criticized by Latinos, African-Americans, and women for failing to take diversity into account in making the appointment," said Nan Aron with the liberal Alliance for Justice.

Before Bush nominated Roberts, almost six in 10 Americans polled said it was important for him to nominate a woman.

Yet, the Roberts nomination might also be evidence that Bush is not letting gender or ethnicity drive his decisions.

''At the end of the day, it turns out he chose the best lawyer he could find, and so what that tells me is that this president is willing to forgo some serious political considerations like naming a woman, naming a Hispanic to have his legacy be naming solid Supreme Court nominees," said Manuel Miranda, chairman of the Third Branch Conference, a group that advocates approval of Bush's judicial nominees.

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