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Justice John Paul Stevens, who was the subject of retirement speculations shortly before the elections, is 86 years-old and battling significant health problems. Ruth Bader Ginsberg, another abortion advocate is 73 years-old and has her own health concerns.

Well, should one or both of these goodfellows go on to meet their maker, Bush might consider the following option:
Nominate the best constitutionalist available and when the RATs defeat him/her, leave the post vacant.

See #27 of ShandaLear. Recess appointments until we recharge the Senate with a rabid wolfpack of hardline GOP conservatives in 2008. In fact, bypass the normal appointment process until the Senate Judiciary Committee publicly surrenders and grovels. Thereafter. resume recess appointments when the first nominee for any appellate court is disrespected, delayed , voted down in committee or on the floor or impeded in any way.

There is a long delayed nominee for the appellate court covering Maryland, a nominee whose name is Peter Keisler. Name him to the first vacancy and let the fun begin. He is relatively young, Jewish, quite conservative, handsome and has a killer sense of humor (graduate of the High School for the Performing Arts in NYC and then Yale). Let his nomination go to Judiciary Committee. If they delay, let him make the rounds of press and media, off of whom he will charm the socks, and then give him a recess appointment after he has milked the press and media for all that they are worth. Put him on the SCOTUS and Leahy, Schmucky and Ted the Driver will go on pilgrimage to the White House to beg Bush to appoint Janice Rogers Brown. Keisler should be first since he does not have a judgeship and will not have to give up lifetime tenure for a recess appointment. He is also the sort of warrior who would relish the opportunity.

Keisler is also a protege of Morton Blackwell which counts for a great deal.

Nominate the best constitutionalist available and when the RATs defeat him/her, leave the post vacant.

OK... let's say the old lib kicks the bucket, and then Bush employs your strategy. Does the SC go on hearing and ruling on cases with only 8 members? And what happens when the decisions are 4-4? My assumption would be that, since the SC is an appeals court, that whatever lower court ruling is being challenged would stand. Does anyone know if this is correct?