The Supreme Court and vacancies

It is widely pointed out that the next President will get the chance to appoint someone to the highest court in the land. GW Bush hasn't had one yet, and he might if he wins another term. Kerry has the same chance, but when a possible second term is factored in he is more likely to face multiple.

Judicial appointments have been contentious in the last decade. Clinton had real trouble getting people in, and in the mean time the federal bench had more openings. If Kerry does not have a 51-member Democratic caucus in the Senate when his first appointment comes, it could be a very long time before a nomination is completed. If memory serves, the first Bush had a heck of a time getting a candidate who could pass muster.

Supreme Court nominations have to be confirmed by the Senate, of course, so it could be said that it is the Senate who actually decides who gets the seat. If a 53-member Republican caucus votes together, they can keep the seat open until they get someone they like better. Presidents are allowed to withdraw appointments should someone prove unworkable. It could mean many appointments until just the right candidate can pass Senate muster.

Because of this, various democratic litmus tests won't really be compatible with the litmus tests the controlling republicans would be applying. The best that can be hoped for is someone like Souter who essentially changed sides not long after joining the bench. An appointee will have to have either no or negative opinions of Roe v. Wade, for example. With partisanship becoming more and more common in the formerly reserved Senate, such behavior is to be expected.