Off The Bench?

Soon after the John Ashcroft confirmation battle, a Democratic elder statesman sidled up to George W. Bush at a White House gathering. "You know, Mr. President," he said, "you can handle the Russians. You can handle the Iraqis. The one thing you can't handle is one of those Supreme Court Justices quitting on you."

"I hadn't thought of it that way," Bush replied. "But you may be right."

The test could come this summer. Most Supreme Court scholars think two members--Chief Justice William H. Rehnquist, 76, and Sandra Day O'Connor, who is nearly 71 and was the first woman on the court--want to pack up their robes and go. With a Republican in the White House (put there by the Justices, their critics complain), either could sign off knowing a replacement would bear passing ideological resemblance to him- or herself.

Last month a rumor shot through the legal community that O'Connor would announce her retirement within a few weeks; that came on top of her widely reported dismay, at an election-night party, over news that Florida had gone for Gore. It was "terrible," she said; her husband explained that she wants to retire but not with a Democrat choosing her successor. She's expressed the same desire to friends. Another report, even more recent, had Rehnquist pledging to take a chair at the University of Arizona law school next fall. The guessing game comes in the wake of the court's bitter 5-to-4 decision shutting down the Florida recount and handing the election to Bush--a ruling that left the court wounded and at war with itself. O'Connor, who voted with the majority, is said to have been especially troubled by the public anger directed at the court. When a friend praised the court's ending the election saga, she replied, "Yes, but at a price."

Which leads to Part 2 of the game: Who would be tapped to take their places? The answer will determine whether the confirmation process is a mere brawl or a full-scale conflagration. The clash over Attorney General Ashcroft, with 42 Senate Democrats voting no, was cast by both sides as a warm-up for the war over the next high court opening, a slot with lifetime tenure. The Senate's 50-50 split adds still more flammability. Bush continues to say he most admires ultraconservative Justices like Antonin Scalia and Clarence Thomas, but will his resolve melt when he has to face the fire?

"Both sides are set for a pitched battle, and it could be a replay of my experience," says Robert Bork, a conservative whose 1987 nomination to the court went down in an ugly partisan clash. Bush might get away with naming an unbending conservative to Rehnquist's slot. But one of the toughest tasks of Bush's presidency could be replacing O'Connor--a swing vote on a court that often rules 5 to 4 and the crucial fifth vote upholding Roe v. Wade, since pro-choice groups no longer count on Anthony Kennedy. "Any effort by Bush to appoint a far right-wing Justice to replace O'Connor could make the Ashcroft battle look like a walk in the park," says Elliott Minceburg, legal director of People for the American Way, which is already doing opposition research on possible nominees.