Warren Richey of the Christian Science Monitor has this article discussing what kind of justice either Bush or Kerry might seek to appoint to the Court in the event of a vacancy, and his election, of course.
The Court hasn't had a vacancy in well over a decade. Whenever a new justice is appointed, the deck is reshuffled and a new court emerges, at least to some extent.
BUT, if a conservative retires while Bush is president, he appoints another conservative like the justice he says he most admires, Clarence Thomas, appointed by his father. CT out-Rights Antonin Scalia, if that's possible. Thomas outrages many blacks, probably unfairly. Why should we expect people to conform to the molds others would like to put them in? He's free to cut his own path through a tangled jungle. Don't be surprised if he's the next Chief Justice. Expect others to act surprised, however.
The Washington Post did a two-part profile on Justice Thomas today and yesterday. I requested, but haven't received from the WPost, an emailed reprint to post here. Try How Appealing. Oct. 10, 11, 2004.
It makes little sense for conservative justice (meaning likely to uphold Roe/Abortion) to retire unless he/she wants to for personal reasons. But the justices of the 'least dangerous branch,' as Hamilton called the soon-to-be created Supreme Court, or the non-political one as they seem to imply when referring to "the political branches" (the Legislative and Executive), are some of the best politicians around. How do you think they got there. CT said he'd never bothered to read Roe and thus had no opinion on it. Some found that a stretch.
Will a liberal justice voluntarily retire with Bush holding the replacement power? Not very likely.
So there's little incentive for any justice to retire for political reasons, and Roe continues to hang on by the slender thread of one vote.
It concerns me that the president with the appointment power is not a lawyer who has practiced in the courts. He's been a litigant, of course (see Bush v. Gore), but not in court on a day to day basis for years. He may see the appointment of a justice as just a political act, to pay off his right wing, for example. That's disturbing.
Supreme Court justices are paid to think, using head and heart, not just something they mouthed but may not have meant during confirmation hearings. Or if the meant it, they may need to change as the case comes up with facts they hadn't considered. I'd like to see someone appointed who can think through open eyes at fresh problems for the current era. Somehow I don't see died-in-the-wool political appointees filling that bill.
Pretty soon the world is going to change.
It's already changing.
Dred Scott. Hmmph. The past isn't dead...it isn't even past. And neither is Roe.