With John Roberts just days away from what is expected to be confirmation, the Senate is erupting with warnings about President Bush’s next nomination to the Supreme Court. The New York Times yesterday quoted two Republicans who are supporting Judge Roberts’s confirmation, Senator Chafee of Rhode Island and Senator Snowe of Maine, as saying essentially that the next choice will be subject to a higher standard of scrutiny because the justice being replaced, Sandra Day O’Connor, is more of a centrist than the rightist, Chief Justice Rehnquist, whom Judge Roberts would replace.

Since the role of the Supreme Court is to interpret the Constitution, the question sent us scurrying toward Article III, where the third branch is established and its delegated powers are outlined. “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” the Constitution says. Nothing there about how many justices there must be, or how many of each political orientation.

That is up to Congress, which in the Judiciary Act of 1789 created a Supreme Court consisting of “a chief justice and five associate justices, any four of whom shall be a quorum.” From 1789 to 1869, the size of the court fluctuated, according to an article by a law professor at Duquesne University, Robert S. Barker, that is posted on the Web site of the U.S. Department of State. Sometimes there were as few as five justices; sometimes there were as many as 10.

In 1866, Congress took the size of the court down to seven from 10 to prevent President Johnson from making any Supreme Court picks, according to Mr. Barker. The court settled in at its current size of nine only in 1869, according to Mr. Barker, and even that was hardly taken as set in stone. President Franklin Roosevelt, after all, tried to pack the court after the 1936 election by expanding the number of judges. He failed at court-packing but succeeded in vastly expanding the federal government.

No one is suggesting that Mr. Bush pull a Roosevelt by adding judges. But the current law requires only six justices for a quorum. So neither is there any reason for Mr. Bush to let himself be held hostage to Senators Snowe and Chafee just to get a justice confirmed. There is even less reason to chase the votes of the class of politicians that is starting to be called the “phony moderates,” such as Senators Schumer and Clinton, who are showing their true extremist colors with their votes against Mr. Roberts. The existing seven Supreme Court justices – eight once Judge Roberts is confirmed – could carry on for plenty of time, and the onus for the vacant seat would fall not on the president but on the obstructionist senators.

Indeed, a confrontation with Congress could serve quite usefully to clarify the issues involved for the electorate, especially in places such as Rhode Island where Mr. Chafee faces a Republican primary against a candidate who might actually be a reliable supporter of the president, or at least an ideological ally. By our lights, the trick will be to find an advocate who is articulate enough to explain to the American people what is at stake. An ideal candidate in our view would be Theodore Olson, who has argued 41 cases before the Supreme Court – two more than John Roberts.

It would be a great thing for our Republic were Mr. Olson, whose wife was killed on the plane that crashed into the Pentagon on September 11 and who will deliver the Gauer Lecture tonight here in Manhattan, on the court as it decides cases having to do with the rights of terrorist detainees. And choosing him would be a welcome departure from the recent trend of elevating only sitting judges to the high court. If there is a standoff, President Bush and his nominee would have to take their case to the American people and amass a filibuster-proof majority of 60 solid Republican votes in the Senate.

That certainly strikes us as an attain able task, and it’d be healthy, too for the Republicans to clarify their views internally. Do they really want the Supreme Court to overturn the 32-year-old Roe v. Wade precedent and return the issue of abortion to the state legislatures and the Congress where it constitutionally belongs? Do they really want a Supreme Court that will overturn precedents on the powers of the federal government and roll back the authority of Congress under the Commerce Clause of the constitution?

Do they really want a Supreme Court that will rule campaign finance regulations unconstitutional, even when the latest regulation was signed by President Bush and championed by a possible 2008 contender, Senator McCain? Do they want a court that would overrule local government attempts to seize private property under eminent domain for transfer to other private owners? Do they – and here’s a constitutional superbomb few have been looking at – want to undo the Slaughterhouse Cases of 1873 and revive the privileges and immunities clause of the 14th Amendment?

These decisions have real consequences for citizens and for politicians both Democrat and Republican. All the justices now on the court are past 65 save for Clarence Thomas. Our sense is that, even after the hearings on Judge Roberts, neither the senators nor the American people have yet engaged with these issues as deeply as will be needed to break our constitutional deadlocks. It may yet be that if Mr. Bush or the majority party in the senate can’t win confirmation of the justices they want then the best way to proceed will be to let the natural course of attrition unpack the court.