How they'll reshape the bench

The Republicans have been unable to assemble the 60 votes necessary to end the filibusters, but they aren't without options. In two instances earlier this year, the White House circumvented filibusters by using "recess appointments" - appointments that happen when Congress is not in session - to place Alabama Attorney General William Pryor and Mississippi Judge Charles Pickering on federal appeals courts.

What remains unclear is whether Senate Democrats would resort to a filibuster against a Supreme Court nominee and whether the White House would respond by making a recess appointment to the high court as a means of forcing an up or down Senate floor vote.

"A vacancy cannot go unfilled indefinitely. And if the Senate refuses to vote up or down on a nominee, a recess appointment may be the only option a president has," says James Swanson, a senior legal scholar at the Heritage Foundation in Washington.

President Eisenhower used recess appointments to immediately place his nominees on the Supreme Court prior to Senate confirmation. All three - Earl Warren, William Brennan, and Potter Stewart - were later easily confirmed. But that was 50 years ago, and Eisenhower was acting in the interest of efficiency at the high court rather than in an attempt to bypass any Senate opponents.

In the current combative atmosphere in Washington, filibusters and recess appointments could trigger a kind of nominee Armageddon.

"I call this process constitutional hardball," says Mark Tushnet, a law professor at Georgetown University Law Center in Washington.

"If the scenario goes through to the point of a recess appointment, I don't think we have any idea what politics after that would look like," Professor Tushnet says. "It would be politics as war. Every issue would be a to-the-death issue."

Regardless of tactics and strategy, there is another factor that could play a key role in the future makeup of the high court. Sometimes it is impossible to predict how an individual will vote once he or she becomes a life-tenured justice.

"Any White House ought to appreciate that a president's predictive batting average for Supreme Court nominees historically never gets above .500," says Professor Garrow.

Of the five justices appointed by President Reagan and the first President Bush, three - Justices O'Connor, Anthony Kennedy, and David Souter - voted to uphold the Roe v. Wade abortion precedent. Indeed, all but two of the Supreme Court's nine justices were appointed by Republican presidents, but the court continues to issue decisions that are neither consistently conservative nor consistently liberal.

• For George W. Bush, the buzz about potential nominees includes J. Harvie Wilkinson and Michael Luttig, both federal appeals court judges on the Fourth Circuit in Virginia; Emilio Garza, an appeals court judge on the Fifth Circuit in Texas; and Samuel Alito, a Third Circuit appeals court judge in New Jersey. Also mentioned are White House Counsel Alberto Gonzales and Utah Sen. Orrin Hatch.

• For John Kerry, speculation is that he might tap Sonia Sotomayor, a Second Circuit appeals court judge in New York. Also mentioned are David Tatel and Merrick Garland, both federal appeals court judges on the D.C. Circuit in Washington; Sandra Lynch, a First Circuit appeals court judge in Boston; and Walter Dellinger, a Duke University law professor and acting solicitor general in the Clinton administration.

Sept. 28

Energy and environment: "Cheaper vs. cleaner: big differences"

www.csmonitor.com/2004/0928/p01s03-uspo.html

Oct. 1

Healthcare: "Rival views of the government's role"

www.csmonitor.com/2004/1001/p01s03-uspo.html

Oct. 6

Jobs and economy: "Divide over managing US's wallet"

www.csmonitor.com/2004/1006/p01s04-usec.html

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