WASHINGTON — Supreme Court Justice Sandra Day O'Connor can look out on the Capitol from her chambers. Chief Justice William H. Rehnquist's morning constitutional takes him past it every day.
The two justices have reason to keep a close eye on Congress' home. What they see could help determine whether either or both leave the bench this year.
There has been intense partisan acrimony in the Senate over some of President Bush's choices to fill federal judgeships. If a justice steps down this summer, there is a very real possibility of a political stalemate that would leave the job unfilled for months.
None of the nine current justices has announced plans to retire, but for reasons of age and politics Rehnquist, 78, and O'Connor, 73, are considered the most likely candidates.
Each has served decades on the court and would prefer to leave while they have their health. Rehnquist was named to the court by President Richard Nixon and O'Connor by President Ronald Reagan.
Both justices are part of the court's conservative wing and would prefer that a Republican president pick a successor.
As a practical matter, any justice thinking of leaving has a choice of going now and risking leaving the court short-handed as the Senate fights over Bush's chosen replacement. They also could hang on for another court session, but 2004 is an election year and that surely would raise the partisan rancor during the confirmation process.
Or they could wait until 2005, hopeful that Bush has swept to a second term and Republicans have built on their tenuous 51-48 advantage in the Senate.
"The window is closing," said David Yalof, a political science professor at the University of Connecticut who specializes in the judicial selection process.
"Presidents have not had much success in appointing Supreme Court justices in election years," Yalof said. The last president to try it was Lyndon Johnson in 1968, when he failed to elevate Justice Abe Fortas to replace the retiring Chief Justice Earl Warren. Republicans filibustered the nomination and Johnson backed off.
Even assuming Bush is re-elected in 2004, from the perspective of Rehnquist and O'Connor there is a risk in sticking around until 2005: Republicans could lose control of the Senate.
Still, Harvard professor Charles Fried, a former solicitor general, said O'Connor and Rehnquist may be willing to gamble.
"Unless there is a pressing personal reason, I think they've got good reason to wait," Fried said. "This isn't such a great time to do it because the Senate is a mess. Next year is surely not a good time to do it."
Senate Democrats have successfully held off a vote on two of Bush's nominees for lower federal courts this year, while allowing other nominations to go forward. Unless the Republican majority forces a change in Senate rules, the Democrats seem able to muster a similar filibuster over a Supreme Court nominee, lawyers say.
Even without a filibuster, both political parties and the White House are girding for a high-stakes political battle, especially if Bush follows through on a campaign pledge to pick a firm ideological conservative in the mold of justices Antonin Scalia or Clarence Thomas.
The closer to a presidential election, the worse the rancor will get.
"The tension is only going to exacerbate over the next year," said Nan Aron, president of the liberal Alliance for Justice. That group is likely to help lead the fight against any Bush nominee seen as anti-abortion or hostile to civil rights laws.
"Whoever is nominated is going to face a very difficult fight, no matter what their record, no matter what they've said, no matter what they've done," said John Nowacki, who tracks judicial selection for the conservative Free Congress Foundation. "They're gearing up to fight anybody."
Rehnquist and O'Connor must know their exits will provoke confirmation battles far more contentious than either of them faced as new nominees. O'Connor seemed to note the political climate change in her new book, "The Majesty of the Law," which some readers see as a valedictory.
A Supreme Court nomination, she wrote, "is an occasion for public interest, as we have been reminded graphically in the last 20 years."
That could be a reference to conservative judge Robert Bork's failed nomination to the court in 1987, which set off much of the bickering that continues today, and the spectacle of Thomas' 1991 Senate hearings and their televised accusations of sexual harassment.
Anne Gearan has covered legal affairs for The Associated Press for 10 years.