What Chief Justice Rehnquist’s cancer means for the election.

Dahlia Lithwick says that it’s doubtful Rehnquist would step down, but:

The possibility of Rehnquist stepping down also crystallizes how oversimplified the recent arguments about the power of Supreme Court appointments really are. Suddenly this “four-seats-to-fill-with-whatever-maniac-he-likes” rhetoric is shown to be at least somewhat lacking in nuance. Because if Rehnquist steps down, and President Bush is re-elected, the 5-4 balance on the current court would remain unchanged. In fact, Bush might arguably have a hard time confirming someone as conservative as Rehnquist in the current Senate climate—meaning that the net effect of a retirement could be a more moderate court, even with Bush in office.

This is why a Rehnquist retirement would mean so much were Kerry to be elected: With the appointment of a liberal or even a moderate replacement, the 5-4 balance on the court would tip dramatically. The possibility of a Roe reversal would virtually evaporate overnight, as would the likelihood of a sea-change in affirmative-action law. It’s a tough argument to make—smacking of that ugly word, “activism.” John Kerry can’t really mobilize voters by saying Bush would replace a staunch conservative with a staunch conservative. He could score a point by saying this is a rare and precious opportunity to replace a staunch conservative with a moderate. But my guess is he won’t. See “activist” above. And whether Kerry really wants to make a campaign issue out of an old man’s possibly terminal illness is doubtful.