Nine seats have been occupied for nearly a decade now. But sometime after January 20th, several seats on the Supreme Court will surely become vacant.

The list of possible retirements that could occur during the next four years is long by Supreme Court standards, and includes a majority of the current Court. Based on age alone, there are four likely departures, all of whom are in their 70s or 80s: Chief Justice William Rehnquist, 79, and Justices John Paul Stevens, 84, Sandra Day O’Connor, 74, and Ruth Bader Ginsburg, 71. Add to that list Justice Antonin Scalia, who many commentators believe is frustrated with the cloistered nature of Supreme Court life, and the distinct possibility exists that five justices will hang up their robes during the next presidential term.

All of this is a long way of saying that whoever wins the presidential election in November will likely control the future of the Supreme Court for some time to come. After all, the stability and longevity of the Rehnquist Court — as traditionally named for the current Chief Justice — is unheard of. You have to go back more than 180 years, to the period between 1812 and 1823, to find the only other time when the highest court in the land retained all of the same members for more than 10 years. Thus, the power to shift the balance among the nine final arbiters of the "supreme Law of the Land" will likely be the most important privilege won in November.

President Bush has already made it abundantly clear how he would select his nominees for lifetime seats on the High Court. Based on his statements and nearly four years of appointments to the federal district and circuit courts, it is safe to assume the President would fill any vacancies with distinguished jurists committed to an independent judiciary that would uphold the rule of law and the plain commands of the U.S. Constitution. Time and time again President Bush has proven that his choices live up to the highest standards of scholarship and integrity — as measured by the American Bar Association, which has routinely given the President’s court nominees qualified and highly qualified ratings.

But who would John Kerry pick?

Well, like many of Senator Kerry’s positions, that depends upon which conflicting statement you are supposed to believe.

In his book A Call to Service: My Vision For a Better America, published last October, Senator Kerry wrote, "I don’t like the idea of using litmus tests for judicial nominees." That statement echoed Senator Kerry’s concern, voiced nearly two decades ago, that our courts could be "threatened … by the appointment of a judiciary which is not independent … through the systematic targeting of any judicial nominee who does not meet the rigid requirements of litmus tests." In other words, we are led to believe that Senator Kerry would appoint judges — as President Bush has — based upon their legal distinction and principled integrity, rather than some predisposition to decide cases in the "politically correct" way.

But, typically, that’s not all Senator Kerry has said on this subject. In the same month his book was published, Candidate Kerry changed his tune about the appointment of judges when he told a campaign audience at the University of Plymouth that "I am the only candidate running who has said point blank: I’m not going to appoint anyone to the Supreme Court who does not support the right of privacy and [a] woman’s right to choose, Roe v. Wade. And if you want to call it a litmus test, go ahead and call it that." And even in the very book where he promised not to use litmus tests to pack the courts, Candidate Kerry qualified that pledge by writing, "I will filibuster any Supreme Court nominee who would turn back the clock on the right to choose, on civil rights and individual liberties, on the laws protecting workers and the environment."

This latter Candidate Kerry is the one judicial nominees to our federal courts have come to know all too well over the past couple years, as Senator Kerry has teamed up with his fellow Senator from Massachusetts, Edward Kennedy, in filibustering multiple "well-qualified" nominees to the federal bench. Those filibusters are not only unprecedented, but are holding the federal judiciary, itself, hostage, as multiple judicial nominations languish on the Senate floor for years awaiting the constitutionally required up-or-down confirmation votes.

Let’s be clear. The obstruction of the judicial confirmation process, led by Candidate Kerry’s mentor and prime supporter, Senator Kennedy, is a political maneuver designed to threaten the independence of the judiciary and to stack the courts with judges willing to use whatever "interpretative" means are necessary to achieve their own ideological ends. (That this is the primary motivation for the Democratic obstruction of the judicial confirmation process became all the clearer when, through a Memorandum, it was exposed that Senator Kennedy’s office recommended delaying a judge’s confirmation because it was feared the nominee would vote the "wrong" way in two high-profile affirmative action cases.) Candidate Kerry is a willing co-conspirator in Senator Kennedy’s judicial confirmation obstruction strategy — and for good reason. After all, the more nominees that can be stalled until January, the more seats on the federal bench there will be to fill if he is elected President.

Thus, gone is the "distinguished" Senator Kerry of 1986, who supported the nomination of Justice Antonin Scalia to the Supreme Court, "not because he is liberal or conservative, but because he is a legal scholar of distinction, of principle, and of integrity." Gone is the Senator Kerry who understood that, "[w]hile I may often disagree with [a judge’s] views," it is far more important to "respect [the judge] as a jurist and a legal scholar" who "will make a positive contribution" to the judiciary and the administration of justice.

Candidate Kerry has made it all too clear who he will choose to pack the Supreme Court — any judge who is willing to tow the political party line, anyone who agrees with Candidate Kerry.

Heading up this list has to be Harvard Law Professor Laurence Tribe, whose constitutional scholarship demonstrates a willingness to twist the Constitution in order to reach liberal results. And, with rumors circulating that the Chief Justice’s seat is the most likely to be vacated first, President Kerry — should that come to be — might attempt to steer the Supreme Court decidedly to the left by making it the Tribe Court for the foreseeable future.

In fact, the name given to the new High Court may signify far more than its new Chief, as the Kerry White House will go in search of a "tribe" of activist justices to fill the Court’s vacancies, testing each nominee for ideological disqualifications. Legal acumen and ethical integrity would be but afterthoughts in the search for appropriate jurists, and the independence of the third branch of government would be sacrificed at the altar of politically motivated results.

Thus, in November, the voters will determine far more than who lives in the White House. They will determine, indirectly, who sits in the nine seats on bench of the highest court in the land. It’s a choice between judicial restraint and judicial activism. It’s a choice between what is actually written in the Constitution and what an unelected judge believes should be written there. And, it could be a choice between a Court made up of justices who are tried and true or just Tribe and litmus tested.