Here's one likely snapshot of the next U.S. Supreme Court justice, according to a University of Montana legal scholar:
• younger, like Justice Neil Gorsuch, who was appointed at age 49,
• more conservative than Justice Anthony Kennedy, a swing vote who announced his retirement Wednesday,
• and potentially from outside the traditional path to the high court given a short list that includes a sitting U.S. Senator.
UM law professor Anthony Johnstone also said the moderate Republicans in the U.S. Senate are the ones who hold the cards in this selection. Kennedy's retirement will take effect at the end of July, giving President Donald Trump, a Republican, his second appointment to the Supreme Court.
In a 2017 journal article for the Pepperdine Law Review about the relationship between the states and the Supreme Court, Johnstone made a prediction of the future makeup of the Supreme Court:
"Given the age and ideology of the current justices, the near-term prospects for Senate control, and the tendency for justices to time their departures strategically (when possible), it is possible that conservative Republican appointees could hold a 6-3 supermajority on the Court for decades," Johnstone wrote.
All presidents have had a short list of potential Supreme Court nominees, but Johnstone said Trump made his list public, which is new.
And he said the president and Republican majority in the Senate have distinguished themselves from recent presidential administrations in how quickly they have filled vacancies on the federal bench. He said the fast appointments allow President Trump to look at his own lower court appointees as potential Supreme Court nominees.
In the minority and without an option to filibuster, the Democrats have little power over the process, Johnstone said. He said any stall tactics they may have would not be enough to push the decision to the next Senate, and Senate Majority Leader Mitch McConnell has said he aims to take up the nominee this fall.
"I think Senate Majority Leader McConnell has every intention and many tools at his disposal to ensure President Trump's nominee is confirmed by the current Senate and not the one that's elected this fall" and seated in January 2019, Johnstone said.
Democrats and moderates have gained political momentum following Trump's election and in advance of the 2018 midterms, although control of the Senate remains a tossup and Republicans could still hold a majority.
Johnstone anticipates moderate Republicans will consider Kennedy's position as a swing vote on more controversial subjects along with the Democrats' inability to filibuster, and temper their appointment accordingly. At the same time, he anticipates the new justice still will be more conservative than Kennedy.
Last year, Senate Republicans upended a long tradition in considering Supreme Court nominations by taking away the ability of the minority party to filibuster confirmation votes.
In modern times, Johnstone said justices who have a choice try to retire during the tenure of a president of the same party as the one who appointed them. So Justice Clarence Thomas, the senior conservative on the court, may see Trump's presidency as an opportunity to depart.
Although President Trump may have his favorite candidates, he may not always get his druthers. Johnstone said the president has nominated candidates to the lower courts who have been determined to be unqualified, and the Senate has not confirmed them.
"The Senate is the real check on this," Johnstone said.