Off The Bench?

By Viveca Novak/Washington

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.

The right voices an equally loud warning: "No more Souters!"--a reference to Bush's father's nomination of David Souter, who often votes with the more liberal Justices. "He was an abysmal mistake," says Tom Jipping, head of the Free Congress Foundation's legal arm. Conservative columnist Robert Novak wrote critically of Souter just last week, sending an unmistakable signal to the White House. Groups on both sides of the issue will want to know--as explicitly as possible--where any nominee stands on abortion.

How to straddle these warring demands? One way may be to change the subject by naming the first Hispanic to the court. The names most often cited: new White House counsel Alberto Gonzales, who logged two years on the Texas Supreme Court and has a thin paper trail; and Emilio Garza, a federal appellate judge in Texas who is further to the right--and volubly opposes Roe. Republicans hope that a Hispanic pick would tie Democrats in knots, although for some Senators, antiabortion views would outweigh diversity. Naming a woman in O'Connor's place would be a similar tactic. Edith Jones, another quite conservative federal judge in Texas, has been on the G.O.P. list for years. A less well-known option: Janice Brown, a California Supreme Court judge who is African American.

Many court watchers believe Bush doesn't really want to tip the court further against Roe. Such a move, says Clint Bolick of the conservative Institute for Justice, "is simply too far from the prevailing public consensus." That would argue for a stealth candidate with a thin record--but could also enrage part of the Republican base and those who don't want uncertainty.

Rehnquist's departure would open a broader field of true-blue conservatives. Michael Luttig and J. Harvie Wilkinson III, colleagues on the Fourth Circuit Court of Appeals, know they're in the running and have jousted competitively in recent opinions. Senate Judiciary Committee Chairman Orrin Hatch is said to want the job, and nominating him or another "member of the club" would confound possible foes. But Hatch's age, almost 67, works against him. Replacing Rehnquist has its own hazards: Bush must decide whether to give the chief's gavel to the new appointee or elevate a current Justice--triggering another hearing. All the moving parts are at least as hard to juggle if liberals John Paul Stevens or Ruth Bader Ginsburg, for age or health reasons, step down. Conservatives hope vacancies occur before 2002, when Democrats could win back the Senate.

For the record, friends say O'Connor's health is good, despite hand tremors. She made a hole-in-one while golfing on the weekend after the election decision. She's also hiring clerks for the next two terms. Still, family in Arizona and a house she and her husband built there beckon. As for Rehnquist, a widower, the dean of the University of Arizona law school denies that he's about to come on board. But people who know him think he's restless enough to leave the court if, they say, for example, he becomes romantically involved.

That's more than enough fodder to keep the gossip mills churning. And plenty too to keep the White House judge pickers up at night.

--With reporting by Ann Blackman and Elaine Shannon/Washington and Andrea Sachs/New York

With reporting by Ann Blackman and Elaine Shannon/Washington and Andrea Sachs/New York