McFreedom

Some conservative comentators have wondered at Rehnquist not retiring before he was a death's door. Why didn't he retire last year, while Bush could comfortably appoint his successor, instead of risking a reelection in between? Some have suggested it represents a love of power on the Chief Justice's part, which overrode his natural desre to insure that his successor has similar views of the law. However, in reading Jack Balkin's take on whether the 2004 election retroactively cofers legitimacy to Bush's first term, I found this passage intriguing:

Bush demonstrated his political legitimacy through the combination of the 2002 and 2004 elections. I do believe that the Supreme Court's decision in Bush v. Gore still remains a stain on their reputations. However, because Bush was not able to appoint any new Justices until he won an electoral majority, the stain is somewhat less severe than it would otherwise have been.

Which makes me wonder - did Rehnquist, in fact, chance retiring or dying with a Democrat in the office of the Presidency because he feared that, if Bush appointed a Justice in his first term, the "stain" of illigitimacy that some place on the Supreme Court would be spread through history on any Justices Bush appointed? If so, that would seem a much more noble motivation for not retiring - he wished to ensure that any questions about the accuracy of Bush v. Gore were put to the electorate before any more Justices were appointed. Thus the Court can avoid the complaint that the conservative members manipulated the outcome of the 2000 election in order to insure the illegal perpetuation of their majority.