By
The Associated Press
WASHINGTON - Maybe Chief Justice William H. Rehnquist will leave first. After nearly 30 years on the court, about half as chief justice, he has dealt with almost any constitutional issue imaginable and built a conservative legacy.
Also, the 76-year-old Rehnquist might figure that leaving now affords the best opportunity for a conservative president and Republican-led Senate to replace him.
Perhaps Justice Sandra Day O'Connor, also a Republican, will quit and retire in Arizona. O'Connor, 70, also has made her mark in 20 years on the court and reportedly has told friends she's ready to travel and play golf.
Or possibly the oldest member of the court, 80-year-old Justice John Paul Stevens, will stop commuting between Washington and Florida and retire in the South.
Probably no one other than the justices and their families really knows if any of those retirement scenarios are in the works, but it seems nearly every lawyer or law professor who keeps tabs on the Supreme Court has a theory.
Justices serve for life or until they choose to retire, and none of the current nine has announced any intention of leaving. They return to business tomorrow, heading for the home stretch of the term that ends in June.
All are in reasonably good health, active on the bench and off, and seem to enjoy their jobs.
Still, for political and actuarial reasons, Rehnquist, O'Connor and Stevens are counted as the most likely to retire, possibly as soon as this year.
"All three of them are at a point where they've served their country for a long time now, they've completed their bodies of work in a way that a lot of the other, younger justices have not," said John Yoo, a constitutional scholar at the University of California at Berkeley.
Over the last 100 years, the average age for a retirement was 71, after serving 14 years on the bench, Yoo noted. Rehnquist, O'Connor and Stevens will be at or past those benchmarks by the close of the current term in June.
The exit of any one of them could alter the court's familiar, fractious 5-4 ideological split, although the departure of O'Connor or Stevens would likely provoke the fiercest nomination battles, lawyers said.
Rehnquist, O'Connor and Stevens were all named to the bench by Republican presidents, but have evolved into a strong conservative, a center-right swing vote and a moderate-to-liberal jurist, respectively.
"They are aware of the distinct role they play on the court, and it's something I'm sure they're thinking about," said Georgetown University law professor Richard Lazarus.
Lazarus said concern over ideological balance would not be uppermost in a retirement-minded justice's thoughts, but added that the justices are surely keeping an eye on the political calendar.
For the institutional good of the court, any justice contemplating retirement wants to see the seat filled as soon as possible, Lazarus said, and they know confirmation battles are toughest in election years.
Rehnquist is the longest-serving member of the court. He was nominated by Richard Nixon in 1972, after political service in the Justice Department. He was nominated for chief justice by Ronald Reagan in 1986.
President Bush would be best able to replace Rehnquist with a similar conservative while he has an assured majority in the Senate, lawyers said.
The Senate, which votes on the confirmation of Supreme Court justices, is split 50-50, with Vice President Dick Cheney the tiebreaker.
Historically, the party in power in the White House loses seats in midterm elections. Death or retirement in the Senate could alter that balance even before the 2002 elections.
The same political calculus applies to O'Connor.
O'Connor became the first woman on the court when Ronald Reagan chose her in 1981. Lawyers who know her say she is comfortable with her record and her place in history, and eager to spend more time relaxing with her husband, who has had recent health problems.
O'Connor is said to have become upset at a friend's party on election night, when the news media initially predicted Bush had lost the decisive vote in Florida.
A Republican politician before she became a judge, O'Connor reportedly was dismayed at the thought that she would have to choose between retiring under a Democrat or staying at least another four years.
With Bush in the White House, it is Stevens who actually faces the difficult political or ideological choice. Although considered a middle-of-the-road Republican when named to the court by Gerald Ford in 1975, Stevens has become a stalwart of the court's liberal side.
He disagrees with Bush on several key issues, including abortion rights, and his exit now would almost surely mean a rightward shift on the court.
Stevens might prefer to stay on the court through the 2002 midterm elections, in hopes of a Democratic majority in the Senate. Without a GOP majority, Bush could opt to replace Stevens with a moderate who would have better chances of confirmation.
"But remember, he'd be 82," then, Yoo said. "He might actually just retire because it's time, putting aside any strategic issues."
