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MOUNTAIN VIEW, Calif., June 30, 2003 – Is Chief Justice William H. Rehnquist about to retire from the U.S. Supreme Court? Is speculation correct that Justice Sandra Day O'Connor will step down at the end of the court's current session this summer, or, as some insiders predict, will she move to the chief justice position? Whom will President Bush nominate to fill any vacant positions?

While the future makeup of the Supreme Court is being debated, FindLaw approached several contributors to its Writ legal commentary for their opinions and predictions.

Former White House counsel John Dean believes Supreme Court vacancies could affect not only the future of the high court, but also the U.S. Senate – the current battleground over several of President Bush's lower-court judicial nominations. "It is clear that both the White House and the Democratic leadership of the Senate have been preparing for vacancies on the Supreme Court. That's what the current Senate filibuster of lower-court judges is really all about," says Dean. "Should the Republicans change the rules of the Senate to prevent the on-going filibuster of one or more of the hard-right conservative nominees, it will change the way the Senate has done business for several centuries.

"The Senate operates largely by unanimous consent, and without it, there will be Senate gridlock, and the Senate will never be the same," Dean notes. "We could be in for a 'nuclear winter' on Capitol Hill."

While concern and speculation are running high because of the potential impact of any retirements from the high court, opinions differ on the potential outcomes. "If Chief Justice Rehnquist retires, the 'political' implications for the court will be minimal," says Edward Lazarus, former federal prosecutor for the Central District of California, author and professor. "It is difficult to imagine that the Senate, so closely divided between Democrats and Republicans, would confirm a nominee who is any more conservative that the current chief justice. Thus, the political balance of the court would remain roughly where it is now."

The political landscape of the court could, however, be dramatically altered if a more moderate or liberal justice retires, providing President Bush an opportunity to move the political balance of the court to the right. "On a closely divided Supreme Court, one or two justices can direct national policy on important issues, such as abortion, affirmative action, capital punishment, church-state separation and states' rights, for a generation," says Michael Dorf, professor of law at Columbia University School of Law.

Dorf notes that the combination of life tenure, the power of judicial review of legislation and the difficulty of the constitutional amendment process – requiring two-thirds majorities in both houses of Congress plus ratification by three-fourths of the state legislatures – places considerable power in the hands of the Supreme Court.

"On many of those hot-button issues, this court is usually narrowly divided, often 5-to-4," notes Lazarus. "Thus, a change in a single moderate or liberal justice could result in a substantial change towards even greater conservatism at the court."

If more than one justice retires, such as Justice O'Connor or the court's eldest member, 83-year-old Justice John Paul Stevens, the benefit would play into President Bush's conservative efforts, says Vikram Amar, professor of law at the University of California. "If both the chief justice and Justice Sandra Day O'Connor were replaced, things are unpredictable," says Amar. "A dual vacancy might give the president more leeway to negotiate with the Senate and enable him to get at least one true conservative through the gauntlet."

Amar believes that even with a closely divided Senate, President Bush would likely be able to nominate, and have confirmed, a relatively conservative jurist to replace either Rehnquist or O'Connor, or both. "O'Connor's replacement, in particular, by a true conservative, could be of great importance," he notes. "She, along with Justice Kennedy, occupies the more moderate center of the current court, and whatever 'liberal' majorities have been assembled in recent years have usually included Justice O'Connor.

"For example, in race cases, if Justice O'Connor were replaced by a conservative jurist, race-based affirmative action would likely be doomed. Justice O'Connor is a key fifth vote in many other areas, including federalism," Amar says.

Should there be any openings on the high court, contributors weighed in on possible appointments. "If Bush had his druthers, he would pick a conservative who is also a member of an ethnic group his party is trying to court, such as Latinos," adds Dorf. "If the president decides to name a Latino, he might pick White House counsel Alberto Gonzales, a longtime Bush ally who served briefly on the Texas Supreme Court."

"I've also heard that White House counsel Gonzales is at the top of the list," says Marci Hamilton, professor at the Benjamin N. Cardozo School of Law, Yeshiva University. "One intriguing possibility would be for the White House to promote Justice O'Connor to chief justice and then fill her associate justice position. In my opinion, that would be good for the court, good for women and good for the country."

Dean believes President Bush would likely appoint one of the sitting justices to fill the seat of the chief justice. "If he selects Sandra Day O'Connor, obviously she will stay. If he selects Clarence Thomas or Antonin Scalia, O'Connor will probably retire. But the new chief, I believe, will come from one of those three."

What if an associate justice slot opens up? "If Republicans are ready to change the Senate Rules," says Dean, "Bush can select anyone he wants; if not, Bush will be forced to select a moderate conservative. My long-shot choice is former Senator Fred Thompson, a moderate conservative, if he is willing to take the job."

Writ is published daily on FindLaw (www.findlaw.com) and includes opinions from today's leading constitutional scholars and authors about front-page legal issues. For more information about the Supreme Court, legal topics in the news or information about the law in daily life, visit FindLaw (www.findlaw.com), the Web's leading destination for legal information and resources for consumers and businesses.

Note to Editors: If you would like to interview Michael Dorf or Edward Lazarus, please contact Scott Augustin at 651-848-5793.