Conservative and liberal activists, lawyers, political junkies, and the media are abuzz with eager anticipation that this summer will bring the mother of all Senate confirmation battles, with the closely divided Supreme Court’s ideological balance at the tipping point. "It is almost certain," Time magazine forecast last month-with more confidence than evidence-"that by the end of June, when the Supreme Court adjourns for summer recess, at least one justice will have announced his or her retirement."

Liberal groups have long been mobilizing for war. Without awaiting a retirement, let alone a Bush nominee, the NARAL Pro-Choice America Foundation began a multimillion-dollar advertising campaign on June 8 suggesting that abortion could be outlawed if Bush succeeds in putting conservative nominees on the Supreme Court.

But those who know whether any member of the Court plans to retire don’t talk, and those who talk don’t know. It seems at least as likely to some astute insiders that no justice will retire this year, for reasons both political and personal.

If one or more justices do retire, President Bush will face a politically difficult choice: Any nominee who would please Bush’s conservative political base would horrify liberals, scare some moderates, provoke a titanic confirmation battle, and possibly go down to defeat. Such a fight could hurt Bush with moderate voters in 2004, even if his nominee won. But any nominee centrist enough to avoid these risks would disappoint many Christian evangelicals and other conservatives, and could risk hurting Republican turnout in 2004.

The retirement rumors have focused on the Court’s three oldest members: Sandra Day O’Connor, a 73-year-old centrist; Chief Justice William H. Rehnquist, a 78-year-old conservative; and, to a much lesser extent, John Paul Stevens, an 83-year-old liberal.

None of the nine justices appears to have debilitating health problems, and none has signaled a clear readiness to retire. The perennial retirement rumors are coming to a crescendo now because the end of the Court’s current term-probably in late June-would be the logical time to go, for any of the aging justices who may be inclined to retire before next year’s election. Justices generally avoid retiring during election years because the political calendar makes it difficult to get a successor through the Senate.

Both O’Connor and Rehnquist, who helped put Bush in the White House, have indicated a preference for retiring during a Republican presidency. This could be their last chance, unless Bush wins re-election. In the words of a Rehnquist associate, "The planets are all aligned now, and whether they’ll ever align again is a crapshoot." O’Connor has told friends that she and her husband would like to move back to her home state of Arizona while they are still vigorous. Members of O’Connor’s family have spent enough time at the Court’s public sessions this spring to foster whispers that this term may be her last hurrah.

The consensus among Court-watchers is that White House Counsel Alberto R. Gonzales is the most likely Bush nominee. The president would love to put a Hispanic on the Court, a historic first that could provide a critical boost to Republicans’ quest for a larger percentage of the rapidly growing Hispanic vote. And Bush is especially fond of the Texas-born Gonzales, who is one of the president’s closest and most loyal advisers. With an inspiring up-from-near-poverty background, growing up as the second of eight children in a two-bedroom house without hot running water in Houston, Gonzales, 47, is a classic American success story. As White House counsel, Gonzales has tangled with liberals and Senate Democrats on issues including executive power, secrecy, civil liberties, and lower-court nominations, but as a Bush-appointed justice of the Texas Supreme Court from 1999 to 2000, he had a relatively moderate record on issues, including abortion rights. He would be hard for many Democrats to oppose.

That record also poses a problem, however. "There would be palpable and shrill disappointment" in conservative ranks if Bush sought to put Gonzales on the Court, especially to replace the conservative Rehnquist, says a Republican veteran of confirmation battles during the Reagan and Bush I administrations. Conservative critics of racial preferences are also alarmed by Gonzales’s public statements touting the importance of diversity in government and other walks of life. Indeed, if Bush picks Gonzales to succeed Rehnquist, the headlines might say, "Bush Nominee Likely to Make Supreme Court Less Conservative."

But would disappointed Republican legal mavens seek to arouse Bush’s conservative base against a Gonzales nomination? "Attacking Gonzales would be equivalent to attacking Bush personally," says a conservative Republican lawyer. "And that is not a way to get on the high road to Republican advancement." With respect to Gonzales’s qualifications to sit where John Marshall, Oliver Wendell Holmes Jr., and Benjamin Cardozo once sat, "a fairly minor consideration," says a sardonic conservative legal activist, "is whether he would be a good and effective justice."

The other leading candidates, say well-connected Republican lawyers, are two smart, scholarly, ambitious, and very conservative former Supreme Court law clerks who sit on the right-leaning U.S. Court of Appeals for the 4th Circuit, headquartered in Richmond, Va. One is 58-year-old J. Harvie Wilkinson III, of Charlottesville, Va., who recently completed a seven-year term as chief judge, and whose courtly civility and dignified bearing fit the public’s image of how a chief justice should look and sound. The other is 49-year-old J. Michael Luttig, of Alexandria, Va., whose pleasant personal demeanor contrasts with his analytically rigorous, sometimes combative judicial opinions. He seems closer than any other contender to being an intellectual clone of Justice Antonin Scalia, the conservative firebrand whom Bush hailed as a model jurist (along with Justice Clarence Thomas) during the 2000 campaign.

The apparent competition between Wilkinson and Luttig in the not-always-subtle rituals of campaigning for the Supreme Court has become intense. In several ferociously worded opinions, Luttig has excoriated Wilkinson’s reasoning. Wilkinson has not responded in kind. He has, instead, sought to put a human face on judicial conservatism, through such vehicles as a February 19 speech at the University of Virginia School of Law titled "Why Conservative Jurisprudence Is Compassionate." Wilkinson’s supporters deplore what they see as Luttig’s gratuitous digs at a rival for advancement. Luttig’s supporters disdain Wilkinson as more political than principled, and one trashed his speech as an unseemly effort to "measure his jurisprudence against Bush’s campaign slogan."

Among other possible candidates for any Supreme Court vacancy are Judge Samuel A. Alito Jr., of Newark, N.J., a scholarly, 53-year-old conservative who sits on the U.S. Court of Appeals for the 3rd Circuit; Justice Janice Rogers Brown, 54, an outspoken member of the California Supreme Court; Judge Emilio M. Garza, 55, of San Antonio, of the U.S. Court of Appeals for the 5th Circuit; 54-year-old Judge Edith H. Jones, of Houston, who also sits on the 5th Circuit and who was a finalist for the nomination that went to Justice David H. Souter in 1990; Solicitor General Theodore B. Olson, a savvy, seasoned Supreme Court litigator who would be a leading contender but for his age, 62, and his role as Bush’s top lawyer in Bush v. Gore, which would give Democrats an opening to rehash the complaints that Bush and the Supreme Court stole the election; and Deputy Attorney General Larry D. Thompson, a 57-year-old former U.S attorney for Georgia, litigator with Atlanta firm King & Spalding, and friend of Justice Thomas.

All of these potential nominees are quite conservative. Some are on the list partly because of ethnic and gender politics: Garza, a Mexican-American; Brown and Thompson, who are African-American; and Jones. Some of Bush’s conservative backers prefer Garza to Gonzales for what is already called "the Hispanic seat" in some circles. But a knowledgeable source says that Garza is not as well regarded in the White House as is Gonzales. In two judicial opinions, Garza has gone far out of his way to criticize the Supreme Court’s decisions protecting abortion rights. Opponents could portray him as highly likely to vote to overrule Roe v. Wade, and that alone might well doom Garza to defeat in the Senate, where the vast majority of Democrats and several Republicans support abortion rights.

Some other Republican-appointed judges who tower over Gonzales, Garza, Brown, and Thompson (as well as some of the current nine justices) in terms of intellectual distinction appear not to be under serious consideration because they have taken positions that offend either liberals or conservatives or both. These include federal appeals court Judges Richard A. Posner and Frank H. Easterbrook of Chicago, and Alex Kozinski of Pasadena, Calif.

To Retire or Not to Retire

"If I die while that man’s president," crusading liberal Justice Thurgood Marshall is said to have instructed his clerks early in the Reagan administration, "just prop me up and keep on voting."

Supreme Court justices have long been acutely aware that the timing of their retirement (or their death) has political consequences affecting the direction of the law. That’s why it is widely assumed that neither the 83-year-old Stevens nor any of his three liberal allies-Stephen G. Breyer, Ruth Bader Ginsburg, and Souter-will retire while Bush is president, unless compelled to by health or other personal considerations. None of them would like to see the dismantling of the principles and precedents for which they have fought.

That’s also why several well-connected conservatives interviewed for this article doubt the conventional wisdom that Rehnquist or O’Connor or both are likely to retire this year. According to two well-placed Republican lawyers, White House officials have indicated that they hope Rehnquist and O’Connor will stay on until after the 2004 election. And this could be a situation in which expressing the hope might make it come true.

These lawyers reason that Bush must concentrate his political capital in the coming months on the Middle East peace talks, Iraq, and other pressing international issues; a confirmation battle would be an unwelcome distraction. In addition, White House officials are said to believe that any confirmation battle would create risks to the president’s re-election.

Bush is flush with military victories, high poll numbers, and an energized political base. A confirmation battle would rock the boat at a time when, at least if the economy improves, he seems to be gliding toward a second term. A conservative nominee might be defeated by a majority vote or, more likely, a Democratic filibuster. And there is always a risk of unpleasant surprises, such as Anita Hill’s stunning sexual-harassment allegations against Clarence Thomas in 1991.

"The one issue that unites the Left is the judges," says Grover Norquist, who heads Americans for Tax Reform and is steeped in grassroots conservative politics. "It’s not in the administration’s interest for the other side to have a trial run at a national mobilization-everyone into the meetings, everyone raising a lot of money."

If Bush shares this view and hopes that Rehnquist and O’Connor will stay on, that message might have been delivered through conservative professional and social networks. It’s also possible that Bush and Rehnquist discussed the latter’s retirement plans, if any, when Rehnquist went to the White House last December 20 to discuss judicial salaries.

To pile speculation upon conjecture: If, as some suggest, the main incentive for Rehnquist and perhaps for O’Connor to leave this summer has been to have a Republican president nominate his or her successor, and if, as some imagine, they now know that this Republican president wants them to stay, why go? Why not hold on to jobs they love, root silently for Bush’s re-election, and wait until 2005 or beyond?

"They just love the perks, the status, and the power," says a lawyer who knows all nine justices. Neither Rehnquist nor O’Connor seems the least bit hard-pressed in keeping up with this Court’s caseload; the justices hear only half as many cases as the Court did before Rehnquist became chief justice in 1986. Their opinions are drafted largely by law clerks. Rehnquist’s chronic back pain seems under control, and he has had enough spare time to write three historical books since 1987; O’Connor has published two books (one co-authored by her brother) since early last year. Unless one or both is eager to retire to Arizona, it’s not a bad gig.

"They’re like Charlton Heston with his gun, saying, `From my cold, dead hands will you pry this job,’ " remarks a former law clerk. Confirmation-battle aficionados, who have been quivering with anticipation of the high drama, dirt-digging, mudslinging, and endless intrigue that would follow any retirement, may have to wait.

High Stakes: The Tipping Point

Then again, they may not. Justices are not immune to the infirmities of age. After nine years without a Supreme Court vacancy-the longest such period since 1823-we are bound to have one sooner or later. When we do, the stakes will be so enormous that the time is ripe now for educated speculation about how the drama might unfold. Plenty of such speculation has been going on, especially among the liberal and conservative groups for whom the vision of an ideologically correct Supreme Court enshrining their views in the Constitution is the Holy Grail. Liberal activists with groups including NARAL, People for the American Way, the Leadership Conference on Civil Rights, and the Alliance for Justice are studying the judicial opinions, speeches, and backgrounds of possible nominees, circulating constitutional arguments in favor of ideology-driven filibusters, and, in some cases, preparing for exhaustive investigations into the personal and professional lives of any nominees, in the hope of digging up dirt, or at least controversy.

The NARAL ads that have already run suggest that liberal groups, which sometimes let scare tactics overwhelm factual accuracy in their attacks on Judge Robert H. Bork in 1987, are prepared to do the same now. One commercial shows a stunned woman reading the newspaper headline, "Abortion Outlawed-Court Overturns Right to Choose." But in fact, even if the Court did overturn Roe v. Wade, abortion would remain legal everywhere in the country unless and until individual states adopted new laws outlawing abortion; most states would not do that, because public opinion in most of the country supports legal abortion, at least in the early stages of pregnancy. Meanwhile, White House lawyer Brett Kavanaugh, a Gonzales subordinate, other administration officials, and Senate Republican staffers were briefed on what to expect, at a three-hour May 22 meeting with battle-scarred Republican veterans of past confirmation battles, including former White House Counsel Boyden Gray, and former Justice Department officials Charles Cooper and Michael Carvin. The handouts included excerpts from a book in which Democratic activists recounted the organization and strategy of the unprecedented 1987 mobilization that beat Bork. A group formed by Gray and other conservatives, the Committee for Justice, has bought ads supporting some of Bush’s appellate nominees and is gearing up to counter liberal attacks on any Supreme Court nominees. If this summer brings the long-anticipated battle over the future of the Court, the opposing partisans will be ready.

The stakes are always high when a Supreme Court vacancy occurs. In recent decades, under the rubric of "constitutional interpretation," liberal-and, more recently, conservative-justices have arrogated more and more power to themselves to decree national policy on an astonishing array of deeply divisive issues: abortion rights, affirmative action, congressional power to expand civil rights and environmental regulation, the shapes of election districts, church-state relations, the death penalty, school discipline, police powers, campaign finance reform, pornography, and much, much more.

The stakes are especially high when a chief justice steps down, mainly because of the symbolic importance of the office-and they are higher still when the Court is so closely divided between liberal and conservative factions that a single appointment could dramatically tip the balance.

The Court was at such an ideological tipping point in 1987, when President Reagan nominated archconservative Bork to replace moderate centrist Justice Lewis F. Powell Jr., then the critical fifth vote for liberal decisions on abortion rights, affirmative action, religion, and other big issues.

And the Court is at a tipping point now, with four liberals (including Stevens), three conservatives (including Rehnquist), and two centrists (including O’Connor) who usually side with the conservatives but join the liberals in some of the most important cases. The justices divide 5-4 so often-with O’Connor’s vote controlling the outcome most of the time-that a one-vote shift in the conservative-liberal balance could move the law dramatically to the right (or the left) on such issues as affirmative action, voting rights, religion, states’ rights, and campaign finance reform. A two-vote shift could threaten Roe v. Wade.

Forecasting the Fight

The balance-tipping Bork nomination touched off the bitterest confirmation battle of all time, ending in his defeat by a 58-42 vote of the then-Democratic-controlled Senate. This summer could see an equally furious brawl, especially if O’Connor, Anthony M. Kennedy (a somewhat more conservative centrist), or any of the four liberals steps down.

If Bush succeeds in adding new justices who would vote with Scalia and Thomas, claims Ralph G. Neas, president of People for the American Way, it could jeopardize "scores of constitutional precedents going back to 1937, on issues including civil and voting rights, reproductive rights and privacy, environmental protection, worker and consumer safety, disability rights, economic justice, and religious liberty."

Any such nominations "would precipitate one of the most intense confirmation battles in our nation’s history," adds Neas, a leader of the 1987 campaign against Bork, "because both sides view these particular nominations as a defining moment in terms of the meaning of the Constitution and the direction of the country for the next several decades. The future of the judiciary is the most important domestic issue in the nation, and what happens between now and November 2004 could determine the direction of the law for the next one or two generations."

Throwing down the gauntlet to the White House, Neas says, "I believe that if the nominee is in the mode of Thomas and Scalia, the Senate will block that nomination, either by a bipartisan majority or by a successful filibuster."

Liberal groups, and senators including Edward Kennedy, D-Mass., and Charles Schumer, D-N.Y., would doubtless tar any conservative nominee as a right-wing, freedom-destroying, privacy-invading, anti-abortion, anti-civil-rights fanatic. In the process, they would try to turn soccer moms and other swing voters against Bush in 2004. And they would leave unsearched no closet in which a skeleton might be found. A more moderate nominee, on the other hand, could spread deep disappointment among conservative legal activists and evangelicals. "If there’s one thing the Right believes they are owed in exchange for their support in 2000," says Neas, "it’s nominations in the mode of Scalia and Thomas, which they believe the president promised them." Some conservative activists, including Phyllis Schlafly, head of the Eagle Forum, have already threatened to stay home on Election Day if Bush picks a justice who does not suit them.

For years, the conservative mantra has been "no more Souters," a reference to the first President Bush’s 1990 nomination of the man then known as "the stealth nominee" because he had no known views on any big issues. Back then, White House Chief of Staff John Sununu famously assured nervous conservatives that Souter would be a "home run" for their cause. But he turned out to be one of the more liberal justices, and he is especially reviled on the Right for his votes upholding broad abortion rights in 1992 and 2000.

With Souter in mind, some conservative activists are deeply concerned that Gonzales might be too centrist-or even liberal. On the Texas Supreme Court, he clashed with more-conservative colleagues in some cases, most notably in a concurring opinion in which Gonzales held that a minor teenage girl was mature enough to qualify for a statutory exemption from a Texas law barring abortions for minors without parental notification. Gonzales accused the conservative dissenters, who voted to forbid the abortion, of "an unconscionable act of judicial activism." He has also been an outspoken advocate for, and self-described beneficiary of, efforts to make the government "look like America," and has never hinted that he shares the deep antipathy for racial preferences that animates many conservatives.

This is not to suggest that Gonzales would get a free ride from liberals or disappoint all conservatives. Groups such as NARAL would demand that Senate Democrats filibuster Gonzales unless he pledges allegiance to their favorite precedents, notably Roe v. Wade-which Gonzales would probably refuse to do, to avoid prejudging issues likely to come before him. They would scour Gonzales’s background in Texas for ammunition. And Nan Aron, another veteran of the Bork battle, who heads the Alliance for Justice, has already vowed publicly to fight any Gonzales nomination, based on his conservative record in the White House, where he has worked aggressively to expand presidential powers and governmental secrecy and to override civil-liberties concerns in efforts to find and detain suspected terrorists. He has also staffed his office largely with brainy young members of the Federalist Society, a network of conservative and libertarian lawyers.

But liberal attacks on Gonzales could backfire. "The vehemence of the Left’s opposition will convince many on the right that the president knows what he’s doing," says Norquist. If Bush tells conservatives, "I’ve known this guy for years and I trust him," Norquist adds, that will be good enough for most of them.

Would the president rather invite an ugly brawl with liberals or risk disappointing some in his political base? If Bush is in a fighting mood, he might see a big confirmation battle over a conservative nominee-win or lose-as an opportunity to cast Senate Democrats as obstructionists and set the stage for a smashing election victory and a bigger Republican majority in the Senate.

Still, the safest nominee for Bush politically-Gonzales-would also be the most congenial personally. Some who recall that Dick Cheney was Bush’s top adviser in 2000 on the choice of a vice-presidential nominee also see a possible parallel in the fact that Bush’s top adviser now in the choice of judicial nominees is one Alberto R. Gonzales.

The Filibuster Factor

Two big strategic questions would overhang any confirmation battle, and perhaps affect White House calculations on whom to nominate. The first is whether Senate Democrats would resort to a politically hazardous filibuster to stop a conservative nominee, and the second is whether Bush and Senate Republican leaders would wheel out a highly controversial parliamentary tactic dubbed the "nuclear option" to break any filibuster.

It would be a game of constitutional poker, with a premium on bluffing skills. The outcome might depend on how well Bush’s nominee came across to the public during televised confirmation hearings.

Under Senate rules, opponents can block any bill or nomination unless 60 members (three-fifths) of the Senate vote for cloture. A Republican filibuster in 1968 blocked President Johnson’s nomination of Justice Abe Fortas to replace Earl Warren as chief justice. But Fortas did not have clear majority support. And until this year, that was the only time this counter-majoritarian tactic had been used to kill a judicial nomination.

Senate Democrats are trying to change that, and to legitimize the practice of using filibusters to block nominees they deem too conservative. They have already used the tactic this year to bottle up two conservative Bush appointees to federal appeals courts and are planning to do the same to others. And liberal groups such as NARAL, People for the American Way, and the Alliance for Justice are likely to press Senate Democrats to filibuster any conservative nominee to the Supreme Court.

Many Republicans bitterly denounce this tactic as an illegitimate effort to distort the Constitution by requiring 60 votes to confirm any nominee to any federal court. While the current filibuster fights have so far drawn little public attention, Senate Democrats understand that it would be politically risky to filibuster a Supreme Court nominee, in the hot glare of the media spotlight. The popular president would lash them for practicing constitutionally dubious obstructionism and, a Republican analyst optimistically predicts, "the Democrats would face a slaughter in the Senate" in 2004. Whether 41 Democrats (including any Republican defectors) would hold firm is unclear.

Also unknown is whether Bush and Republican leaders would try to use the "nuclear option" to break any such filibuster. Under that strategy, the Senate’s presiding officer-Vice President Cheney, when he is present-would declare unconstitutional either the Senate rule allowing filibusters of nominations or the rule requiring an (unattainable) two-thirds majority to amend the rules (including the filibuster rule). Unless 51 senators voted to overturn the presiding officer’s decision, the Republicans could then ram the nomination-and all other presidential nominations-through by a bare 51-vote majority.

But a former Bush administration official suggests that the talk of changing the rules to break any filibuster is probably a "brushback pitch," to make Democrats hesitate, rather than a tactic likely to be used in practice. And some Republicans, wary of being pilloried in the media as radicals and rule-breakers, would much prefer the prospect of watching Democrats twist slowly, slowly in the wind of their own filibuster. Bush could win by losing, contends one: "Either you get the person you want, or the Democrats screw themselves up."

As of now, a majority of the Senate would probably reject the nuclear option. At least three of the 51 Republicans-New Mexico’s Pete Domenici, Arizona’s John McCain, and Mississippi’s Thad Cochran-have expressed grave doubts about this tactic, which they fear would fundamentally change the character of the Senate, undercutting its traditional role as a restraint on majoritarian excess. Unless one or more of them changes his mind in the heat of a Supreme Court confirmation battle, any effort by Bush and GOP Senate leaders to change the rules in the middle of the game would fail.

If Senate Republicans did unite in favor of the nuclear option, Senate Democrats could do little to stop them. They have warned, however, that such a move would mean total war, and that they would retaliate by using dilatory tactics to bring Bush’s legislative agenda and other Senate business to a grinding halt. But would they? Such a response might well backfire by plunging Democrats into the kind of public-relations disaster that Newt Gingrich brought upon House Republicans when he got the blame for shutting down the government in his budget battle with President Clinton.

These and other variables make it difficult for any of the players to foresee with confidence how Bush’s choice of a nominee, or nominees, might play out. But any list of candidates oversimplifies a multifactored strategic calculus that turns on a variety of questions. Which, if any, of the Court’s members will retire? Will two or even three step down? Will Bush give more weight to personal affinity, judicial philosophy, professional distinction, easy confirmation, or political gain in choosing among possible candidates? Will the nominee, or nominees, he chooses come across well on television? And more.

The most plausible scenarios are O’Connor retires; or Rehnquist retires; or both retire.

Scenario No. 1: O’Connor Retires

Gonzales seems especially likely to be the nominee if O’Connor, the Court’s ideological center of gravity, retires. Bush would have a hard time getting the Senate to confirm any of the other leading candidates, because all are clearly conservatives whose confirmation would tip the Court’s balance.

O’Connor has sided with the Court’s liberals on a number of critical issues, including cases involving abortion rights, women’s rights, gay-and-lesbian rights, and student-initiated prayer at public school functions. Democrats would use every available weapon to block a nominee who seemed likely to take conservative positions on all or some of those issues.

Senate Democrats might be able to muster 51 votes to reject a conservative nominee such as Wilkinson or Luttig to fill O’Connor’s seat, by picking up enough moderate Republican allies to outnumber conservative Democratic defectors. And at least 41 Democrats would likely vote to sustain a filibuster. Unless Republicans were then to unite behind the nuclear option, the nomination would be dead.

A conservative woman such as Jones would have a better chance of getting through the Senate, and a conservative black woman such as Brown would have a better chance still. (No Hispanic woman appears to be under consideration.) Indeed, some feminists would probably oppose any male nominee to replace O’Connor, the Court’s first woman justice, because that would leave only one woman on the Court, Clinton-appointed Ruth Bader Ginsburg, at a time when half or more of the nation’s law students are women.

But a Gonzales nomination would still be likely to get through the Senate with relative ease. And the political advantages of making history’s first nomination of a Hispanic to the Court would far outweigh any disadvantages. For starters, Bush could hope for a lot more Hispanic votes in 2004 than he got in 2000. Looking beyond 2004, Republican strategists, including White House political guru Karl Rove, are targeting Hispanics, now the nation’s largest minority group, as their best hope for making inroads into a large, traditionally Democratic voting bloc.

Scenario No. 2: Rehnquist Retires

A Rehnquist retirement would give the president the option of either looking outside the Court for a new chief or promoting one of the current justices and then filling his or her seat with someone from the outside.

One problem with the latter option is that all four of the more-conservative justices joined Rehnquist in making Bush president by 5-4 in Bush v. Gore, a decision still seen by many Democrats and some others as politically motivated and thus illegitimate. "The Democratic senators would talk for hours and hours about what the Court did there, and that’s what’s going to be on the evening news," says a former administration official.

Gonzales, again, would be the most easily confirmable nominee. But many of Bush’s supporters would be unhappy if he proposed to fill the first available seat with a nominee more liberal than the departing Rehnquist. And ideology aside, Gonzales has less experience, less professional stature, and less demonstrated legal acumen than the other leading candidates, a fact that would be especially conspicuous were he nominated for chief justice.

Wilkinson, in particular, has more the look, sound, and resume of a chief justice. And a conservative such as Wilkinson or Luttig might have a better chance of winning confirmation if the vacant seat were Rehnquist’s than if it were O’Connor’s, because a conservative-for-conservative swap would have little effect on the Court’s liberal-conservative balance. If Bush does decide to promote from within, the obvious choice jurisprudentially would be Scalia, the 67-year intellectual star of the Court’s conservative faction, whom Bush praised during his campaign. But the Democrats might well filibuster Scalia just as furiously as they would Wilkinson or Luttig. Indeed, it’s unclear whether Scalia would consider the nomination worth the indignity of the confirmation proceeding and the pounding that he would take from the Left.

Liberals see Scalia as the embodiment of a new and dangerous brand of conservative judicial activism. "They pick Scalia," says a Senate Democratic aide, "and they’re spoiling for a fight." Scalia has called for overruling Roe v. Wade; he rejects gay rights and other claimed rights to sexual privacy; he would ban racial affirmative-action preferences and gerrymanders to help black and Hispanic political candidates; he has joined the Rehnquist Court’s controversial line of 5-4 decisions reviving states’ rights to strike down portions of the 1994 Violence Against Women Act and other popular civil-rights laws; and he has lowered the judicially constructed barrier between church and state.

But all of the above can also be said of Rehnquist. And even if Rehnquist were a liberal, replacing him with Scalia would have less effect on the Court’s balance than the choice of a new justice from the outside. For all the prominence of the office, the chief justice has only one vote, and is not a great deal more powerful than any other justice. Liberal strategists are wary of so depleting their ammunition to stop Scalia that they wouldn’t have much left to throw at the next nominee, even if he or she could do more damage to their causes. And that is what some conservative strategists are hoping for. "I hope the Left fires every rocket they have at Scalia," says one.

In 1986, liberals played out just that scenario: They focused so much of their time and energy and money on attacking the nomination of Rehnquist to succeed Chief Justice Warren E. Burger that they did little damage to Scalia’s nomination to fill Rehnquist’s seat. The result: Rehnquist still won by a comfortable if not exactly flattering 65-33 margin, and Scalia-who was a well-known conservative then and has turned out to be even more conservative than Rehnquist-was confirmed by a 98-0 landslide.

That vote, together with Scalia’s undeniable legal skills and intellectual prowess, would make it hard now for liberals to contend credibly that he is unfit to be chief justice. But that would not necessarily stop them from trying. And Scalia is vulnerable to criticism that he lacks the consensus-building skills and conciliatory temperament that a chief justice should ideally have. He sometimes oozes contempt for his colleagues’ reasoning, as he did in a 1989 opinion trashing O’Connor’s position in an abortion-rights case as "irrational," "perverse," "indecisive," and so fatuous that it "cannot be taken seriously." Scalia also annoys the other justices by hogging time during oral arguments.

If Scalia were confirmed as chief, Gonzales would probably get through the Senate too, if he were the nominee for Scalia’s current seat. But this would shift the Court’s balance to the left, amid conservative dismay, almost as much as would making Gonzales the chief justice. Luttig or Wilkinson would make conservatives happier but would face a tougher fight.

Even if a nomination of Scalia for chief justice went down, the next nominee might benefit from Democratic and voter battle fatigue. And that would give a conservative nominee such as Wilkinson or Luttig, not to mention Gonzales, a better shot at winning confirmation than if Scalia had not been nominated and defeated beforehand.

Bush seems unlikely to name any of the other eight justices to be chief justice, with the possible exception of O’Connor, who would inspire little conservative enthusiasm. At 73, she would be the oldest person ever named chief justice. And while she would be easily confirmed, that would be a mixed blessing for Bush: Liberals could save their ammunition for an all-out assault against any conservative nominee for O’Connor’s current seat.

Bush would not consider any of the Court’s four liberals for promotion. Nor does conservative-leaning centrist Justice Kennedy, whom Reagan appointed after Bork’s 1987 defeat, seem a likely Bush choice to head the Court. Not only would Kennedy draw liberal criticism for his conservative votes in some cases; more important, he is also widely reviled in conservative legal circles both for his liberal votes and for what critics call his overeager self-promotion. "Conservatives would be disappointed if O’Connor were elevated to the middle chair; they would be pissed if Kennedy were," says one.

The 54-year-old Thomas, if nominated to the center chair, would draw bitter liberal attacks on his archconservative jurisprudence. Many Democrats would also be prepared to drag Thomas, Bush, and the country through Anita Hill’s allegations again. Some would try to turn the hearing into a perjury trial, focusing on Thomas’s angry, across-the-board denials of all of Hill’s allegations. It would be an ugly mess.

Scenario No. 3: Both O’Connor and Rehnquist Retire

If Rehnquist and O’Connor both retire, Bush will have a powerful incentive to pick someone from outside the Court to replace the chief justice, to avoid the burden of three confirmation proceedings in a row.

Among many possible permutations of nominees, Wilkinson (or another conservative) might be the most plausible choice to replace the conservative Rehnquist as chief, and Gonzales the most logical nominee to fill the moderate O’Connor’s seat.

While Gonzales’s modest credentials would not be a serious obstacle to his winning Senate confirmation as chief justice, putting him in that seat could make it especially hard for Bush to get Wilkinson, Luttig, or any other conservative through the Senate to replace O’Connor. The reason is timing. With the confirmation proceeding for the chief justice nominee going first, as is traditional, Senate Democrats could hold their fire while Gonzales was being confirmed to replace Rehnquist-probably tipping the Court’s balance somewhat to the left-and then go all-out to prevent any conservative from filling O’Connor’s seat, lest the balance tip sharply to the right.

The fact that the net effect on the Court’s balance would be virtually the same no matter which of the two became chief justice would be lost in the noise. And if Democrats succeeded in a strategy of stopping any conservative nominee for O’Connor’s seat, Bush might eventually be forced to name another moderate. That would infuriate conservatives, who would fear, with reason, that both Bush nominees might prove to be more liberal than the justices they replaced.

If Bush wanted to gratify his conservative base by naming two unquestioned conservatives, and passing over Gonzales, he might choose either Wilkinson or conservative favorite Luttig-but probably not both, because both live in Virginia and sit on the 4th Circuit. Alito would be the first choice of many conservatives for the other seat.

But many in the media, as well as liberal and feminist groups, would excoriate Bush for naming two white males. To avoid that trap, Bush might look to Emilio Garza (a Hispanic 5th Circuit judge), Janice Rogers Brown (a black California Supreme Court justice), Larry Thompson (the black deputy attorney general), Edith Jones (another 5th Circuit judge, who would benefit from being female, although not from being white), or another candidate with diversity points.

There are, of course, wilder scenarios, such as a Rehnquist-O’Connor-Stevens triple retirement. And if Bush wins a second term, he will have a good chance of replacing all three, and perhaps one or more of the other six current justices; the oldest of them, Ginsburg, is 70.

Amid all the politicking and war-gaming, it’s worth recalling how often justices have disappointed the presidents who appointed them. Dwight D. Eisenhower, when asked whether he had made any mistakes as president, replied: "Yes, two, and they are both sitting on the Supreme Court." They were Chief Justice Earl Warren and Justice William J. Brennan Jr., who were among the most liberal justices in history. President Truman once complained: "Packing the Supreme Court simply can’t be done…. I’ve tried it, and it won’t work…. Whenever you put a man on the Supreme Court, he ceases to be your friend." President Nixon appointed Justice Harry A. Blackmun as part of a campaign to make the Court more conservative; Blackmun drifted left, and was the Court’s most liberal member when he retired in 1994. President Reagan and the first President Bush ran on anti-abortion platforms, yet two of Reagan’s three justices (O’Connor and Kennedy) teamed up with one of Bush’s two (Souter) to reaffirm the core holding of Roe v. Wade in 1992.

What the legal scholar Alexander Bickel wrote in the era of monochrome maleness remains true today: "You shoot an arrow into a far-distant future when you appoint a justice, and not the man himself can tell you what he will think about some of the problems that he will face."