Posted Aug 01, 2012 07:50 am CDT
Voters won’t be punching chads or hitting touch screens with the names of U.S. Supreme Court nominees on Nov. 6. But with three justices in their late 70s and a fourth in his mid-70s, chances are strong that a second-term Barack Obama or a first-term Mitt Romney will have the opportunity to nominate one or more replacements. Already, many in legal and political circles have drawn up lists of potential nominees.
“The Supreme Court is essentially going to be on the ballot this November,” says Margery F. Baker, executive vice president of People for the American Way, a liberal group based in Washington, D.C. “We want to make sure people understand the stakes.”
Clint Bolick, a conservative legal activist at the Goldwater Institute in Phoenix, says that “justices long outlive the presidential administrations during which they are named. It is truly the most lasting legacy a president can have.”
Bolick is the author of a new book, Two-Fer: Electing a President and a Supreme Court. He notes that not since Clarence Thomas succeeded Thurgood Marshall on the court in 1991 has there been a case of a liberal being replaced by a conservative or vice versa.
“The shift of a single justice could tilt the court’s balance sharply to the left,” Bolick writes of a possible Obama second term. Of course, a Romney presidency could mean solidifying the court’s conservative majority for years to come.
But a number of factors could combine to make the future of the high court a more salient issue this fall.
During President Obama’s term, the Supreme Court has issued divisive opinions on campaign finance, the Affordable Care Act and state immigration measures, and the president has not shied away from making the court an issue. Meanwhile, the court’s next term already includes a high-wattage case on affirmative action in higher education, and it could bring cases dealing with another hot-button issue: gay marriage.
“Because of what some people see as political decisions by the court, and the impact that its decisions can have on their lives, I think it’s a different landscape this year,” says Baker of People for the American Way. The group has launched a website aimed at drawing attention to Romney’s potential impact on the court.
For example, Romney chose Robert H. Bork, the controversial high court pick of President Ronald Reagan whose nomination was defeated in 1987, as a judicial adviser during the heat of the Republican primary last year, at a time he was striving to establish his bona fides with conservatives. So the PFAW site, RomneyCourt.com, imagines the potential impact of Romney picking Bork for the court.
Romney’s campaign says that if elected, the Republican will nominate people in the mold of the court’s four more conservative members: Chief Justice John G. Roberts Jr. and Associate Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. (swing Justice Anthony M. Kennedy is pointedly not mentioned).
But the role of Bork might be vulnerable to attack from the Obama campaign. “And it may not be something that appeals to independent voters,” says Adam Winkler, a liberal-leaning law professor at the University of California at Los Angeles.
Curt Levey, the president and executive director of the Committee for Justice, a D.C.-based conservative group focused on judicial nominations, says that if Romney is elected, Bork won’t be taking a full-time job in the White House advising the president on court picks.
“At the end of the day, other than symbolically, the fact that Bork is on [Romney’s judicial advisory panel] is not going to make a difference,” Levey says.
With two Supreme Court nominations under his belt, Obama has a more direct record on the issue, observers note. Sonia Sotomayor and Elena Kagan represented a commitment to greater ethnic and gender diversity while also bringing moderate, but not stridently liberal, views.
Putting aside basic qualifications such as relevant legal experience, the top consideration for Supreme Court nominees these days is age, observers say. The sweet spot will be 45 to 55 years old. Justice Ruth Bader Ginsburg, at age 60 when she was nominated in 1993, was the last to join the court having hit that milestone, although Harriet Miers was 60 in 2005 when President George W. Bush nominated and later withdrew her name amid a revolt among conservatives in his party.
“If you’ve been on the [potential nominees] list already, you are unlikely to still be on that list” when the next seat comes open, Winkler says. “The only certainty about the next Supreme Court pick is that he or she will be young.”
Supreme Court litigator Tom Goldstein, publisher of SCOTUSblog, says that “Republicans in particular really value youth [for high court picks]. I don’t see them putting up someone older than 53 at nomination.”