Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Friday, May 01, 2009

An Obama Supreme Court

Justice Souter's retirement means that President Obama will make his first Supreme Court appointment in the first year of his presidency, putting him on track with Ronald Reagan, who made three appointments (O'Connor, Scalia, Kennedy). If Obama is re-elected, which is at least an even possibility based on recent history, this means he can replace any justice who retires or expires before January 20, 2017. If none retire before that time, the justices will be:

Stevens (97)
Ginsburg (84)
Scalia (80)
Kennedy (80)
Breyer (78)
Thomas (68)
Alito (67)
Roberts (62)

Currently, the only justice over 80 is Stevens - by 2016 there will be almost five of them if none retires. Realistically, Stevens and Ginsburg will leave the court within the next eight years (he because of age and she ill health). Obama will, therefore, have the ability to make over the liberal wing of the Court.

Whoever is nominated next will change everything on the Supreme Court, however. It is a small institution and personal connections matter. Right now real progressive views are expressed only by Ginsburg. When she has an ally, perhaps a woman, it will change the personal dynamics on the Court. It will shift the center of gravity to the left.

But what of the balance of power? That probably falls to Scalia or Kennedy to decide. Whether they grimly hang on in hopes of a Republican President is not clear. Scalia is more motivated to do so than Kennedy, the current swing vote. After 30 and 28 years on the bench both may simply wish to retire. That will be the real battle royale of Supreme Court appointments.


Raised By Republicans said...

LTG and Seventh Sister, let me bounce something off you here...

I'd be willing to bet that barring some disaster on Obama's watch, the Republicans cannot reclaim the white house in 2012 in their current form. The party is simply too ideologically extreme and geographically isolated. I strongly suspect they'll need the next 8 years at least to deal with their right wing Theo-populist problem.

So any Republican that might follow Obama will likely not be the same kind of Republican Bush was. So they may appoint justices that are more like the appointments made by Republicans like Eisenhower and George I (Bush). This may be the beginning of the end of an entire era of jurisprudence.

What do you lawyers think?

The Law Talking Guy said...

I have to, sadly, disagree with you, RBR. I fully agree that the political identity of the next Republican president will probably be, at least publicly, more moderate than Bush II. But I think the price a newer moderate Republican will pay for winning far right support - for putting together a winning coalition - will be promising the far right a socially conservative justice. (In the same vein, watch Obama now nominate a true liberal to the Court to appease the left of his party.).

So while I agree with your political analysis, I sadly have to disagree that it will have an impact on the SC as you might desire.

The bigger news is on the lower courts! With so many vacancies to fill and bills before him to create new judgeships, Obama will be able to put a real stamp on the lower courts. So the lower courts will reinforce the moderate/progressive decisions and narrowly interpret/avoid the more conservative precedents. (the reverse of the present position in many judicial circuits, esp. 4th, 5th, and 11th).

Raised By Republicans said...

That's what I was afraid of. Oh well.