John Paul Stevens lunch in Chicago -- smart as a whip and in excellent shape. Bush v. Gore question.

On Wednesday I went to the annual John Paul Stevens lunch that the Chicago Bar Association puts on every year. Stevens is a product of Chicago, as a University of Chicago undergrad, a Northwestern Law grad, a Jenner and Block litigator and an active members of Chicago Bar Assocation committees until he became a judge.

He's in his 80s, and as the most progressive Justice on the Supreme Court, I've been worried about his health.

Good news: he's in excellent shape. His comments were lucid and intelligent and physically he looked great.

Hopefully he won't have to hold on for another four years, but based solely on watching him for an hour or two this week, I'd tentatively say that it would be possible for Stevens to wait out another Bush presidency. Not likely, but also not impossible.

Now here's a fascinating question: given how Bush v. Gore was an atrocious, partisan decision that besmirched the independence of the Supreme Court by stopping officials from counting votes in order to avoid the possibility of negatively affecting the legitimacy of President Bush's election (remember, that's what Scalia wrote in his order), did the old Republican Supreme Court members like Sandra Day O'Connor and William Rehnquist intentionally decide not to retire? In other words, did they decide to make up for their horrible mistake in Bush v. Gore by waiting until someone can win "fair and sqaure" in 2004 to name a replacement?

I can understand why Stevens wouldn't retire. But why not O'Connor or Rehnquist? Those guys were rumored to want to retire. O'Connor reportedly said at an election night party in D.C. when Gore was first called the winner of Florida something like "Damn. . .I wanted to retire."

I think they believe (rightly) that if they gave President Bush the chance to appoint a justice after they gave President Bush the election in Bush v. Gore, then that low moment in Supreme Court history would infect the Court for years. If they wait until someone won in 2004, then they limit the damage from Bush v. Gore and the Court regains some of its lost legitimacy.