WASHINGTON, Feb. 11 (UPI) -- If likely presidential nominee Sen. John Kerry, D-Mass., remains strong going into the election this fall, look for speculation to focus on Justice Stephen Breyer as a possible chief justice of the United States.
If Breyer rises to that height, the whole dynamic of the Supreme Court will change, with profound implications for the issues that divide the country.
Reporters have been predicting for some time that Chief Justice William Rehnquist will retire. One of these years, he actually will. But Rehnquist passed up the chance to step down this year when President George W. Bush had a sure chance to name his successor.
With the White House now up for grabs, Rehnquist has a diminishing opportunity to "dance with the girl that brung you" -- to let a Republican president determine the next person to sit in the chair at the center of the Supreme Court bench.
If Kerry happens to win in November, Rehnquist must either step down sometime over the next several years and allow the Democrats to choose his replacement or hang on to his job until 2009, when he will be 85, in the hopes of getting another Republican in the White House.
The latter scenario is not impossible but is considered unlikely given Rehnquist's back problems.
Which brings us to Breyer, a centrist in the four-justice liberal bloc of the high court, who is little known or understood outside the legal community.
News out of the Supreme Court is often dominated by such colorful personalities as Justice Antonin Scalia, a bedrock conservative who sometimes shoots questions from the bench with an acid-tipped tongue. Occasionally, he has equally scathing things to say to his fellow justices.
By contrast, no one can recall Breyer ever belittling anyone in the courtroom. He often displays a self-deprecating sense of humor during argument, and even laughs with lawyers if they poke gentle fun at him.
Breyer, intellectually restless but approachable, is in stark contrast to the present chief justice. Unlike Rehnquist, he is popular with the Supreme Court media corps. The aloof Rehnquist often gives the impression he wouldn't spit on a journalist if the reporter's hair were on fire.
Beyond these superficial attractions, however, Breyer's roots reach deep into Kerry's Massachusetts, despite the fact that he's a native Californian.
After his undergraduate days at Stanford and a stint at Oxford, Breyer was editor of the Harvard Law Review. He then worked as a clerk for Justice Arthur Goldberg and later became a Watergate prosecutor.
In 1974, longtime ally Sen. Ted Kennedy, D-Mass., tapped Breyer to be special counsel for the Senate Judiciary Committee. A few years later, he was promoted to chief counsel.
Those Senate Judiciary contacts served him well when in 1980 President Jimmy Carter named him to the U.S. Court of Appeals for the 1st Circuit, which has headquarters in Boston.
Breyer rose to become chief judge of the circuit, one of the 12 geographical circuits in the United States, in 1990.
When President Bill Clinton encountered his first opportunity to name someone to the high court in 1993, Kennedy lobbied hard for Breyer's nomination. Clinton opted for Justice Ruth Bader Ginsburg, then on the U.S. Court of Appeals for the D.C. Circuit and, like Breyer, considered a brilliant jurist.
Despite that initial disappointment, the second time proved the charm for Breyer. When Clinton's second and final opportunity to name someone to the court came the following year, Kennedy again pressed for Breyer, and this time Clinton approved.
During his decade on the court, Breyer has earned the reputation of a centrist among the liberal bloc. On many issues he joins Ginsburg and Justices John Paul Stevens and David Souter on the left, but among the liberals his vote is considered the most unpredictable.
Breyer also is not afraid to lead. Earlier this year, he wrote the 5-4 opinion upholding the core provisions of the Bipartisan Campaign Reform Act, with its ban on soft money in federal elections. The decision was highly praised by Kerry.
Now a youthful 66, Breyer's experience as a chief judge, his popularity at the court and among both parties in the Senate, and his powerful political connections in Kerry's home state, make him the natural choice to succeed Rehnquist should the chief justice step down and Kerry prevail over Bush in November.
Kerry himself believes the occupant of the White House in 2005 will get to reshape the court. He told an audience in October, "It is entirely possible that whoever is elected next November will have the power to appoint a new majority of the members of the Supreme Court. No president will have made this many appointments since FDR. And when it comes to making this deep of a mark on the nation, I somehow trust Franklin D. Roosevelt more than George W. Bush."
But before Democrats start licking their chops, let's recognize that Bush has much the same opportunity if he can hang on to his job.
Over the next five years, Rehnquist is likely to go, but so are Justices John Paul Stevens and Sandra Day O'Connor, a liberal and a moderate conservative who continue to support a woman's right to an abortion.
Today the court is almost in stasis, with the justices splitting 5-4 one way or the other on many key issues such as abortion, states' rights, affirmative action and separation of church and state -- and will probably spilt closely as well in deciding the powers of the presidency during the war on terror.
The next president almost certainly will get a chance to change that balance to 6-3, and to do so in a way that reflects his own beliefs.
--
(Mike Kirkland is UPI's senior legal affairs correspondent. He has covered the Supreme Court and other parts of the legal community since 1993.)
