The Three Who Could Decide

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Three possible swing votes: Kennedy, Rehnquist and O'Connor

The middle ground is a pretty barren place these days.

Even that last bastion of presumed objectivity, the U.S. Supreme Court, is deeply divided along political lines; six of the bench's nine justices (Scalia, Thomas, Ginsburg, Souter, Stevens and Breyer) are solidly committed to ideological positions they are considered extremely unlikely to abandon. That divide was never more clear than on Saturday, when the Court voted 5-4 to stay the Democrats' recount effort in Florida.

On the other hand, the remaining three (Rehnquist, Kennedy and O'Connor) have demonstrated a willingness to be swayed. And so as the Bush and Gore teams presented their oral arguments before the bench Monday morning, the lawyers were likely to be focusing their energies on those judges in particular.

In a way, this is good news for the Gore team, since such a divide leaves only Justices Scalia and Thomas to defend the conservative line; Justices Souter, Ginsburg, Breyer and Stevens would need only one of the wavering votes to reverse the stay on the Florida recount.

But how likely are the three swing Justices to abandon the camps established by Saturday’s divisive vote?

Chief Justice Rehnquist is considered a long shot for the Democrats, but he is a staunch supporter of state autonomy — a cause generally championed by conservatives — which could bode well for upholding the Florida Supreme Court's decision. If Gore lawyer David Boies can hammer home a states' rights argument, the Chief Justice could conceivably abandon his previous vote. Another consideration for Rehnquist: This decision will likely define his term as Chief Justice. The political considerations are staggering; no Court has ever played such an active role in determining the presidency before, so Rehnquist in particular may exercise extra caution before voting to end Gore's contest without the safeguard of at least a partial recount.

Justice O'Connor and Justice Kennedy are perhaps more likely to swing over to Gore's side — although some consider O'Connor a more likely defector. Both Kennedy and O'Connor have (and jealously guard) reputations as consensus-builders, and are often the decisive votes in extremely controversial cases, including recent abortion-rights rulings. Don't expect to read any grand political statements into either of these Justices' votes; Kennedy, in particular, seems inured to the political ramifications of Court rulings, and tends to examine each case on a purely legal and intellectual level — more so than other Justices whose political connections render them far easier to read.