Obviously, the upcoming elections are in the news. Everywhere. Every day.
But I'm not sure we're learning much other than what we want to learn about the candidates we already support.
But today, there is a great article from Yahoo News about the possible implications of the presidential election for the US Supreme Court.
This is refreshing. Perhaps we'll think long and hard about it before we vote.
Whoever wins the election this
fall may be in a position to radically change the ideological makeup of
the Supreme Court, a legacy that far outlasts a four-year term. On
Wednesday, the nine justices will hear oral arguments over whether and
in what ways universities can use the race of applicants as a deciding
factor in admissions. Just nine years ago, the Court upheld race in
admissions in a 5-4 vote when swing justice Sandra Day O'Connor joined
the liberal wing of the court for the decision.
O'Connor has since been
replaced by the much more conservative Samuel Alito, and some judicial
experts think the relatively recent decision will be reversed,
displaying how quickly court nominations have consequences on the law.
President Barack Obama has
already appointed two new justices to the Court and, if he's reelected,
he'll most likely get at least one more crack at it. There are currently
four justices in their seventies on the aging Supreme Court, and three
of them are within four years of 79, the average age at which justices
have retired since 1970.
As we wrote last week, Romney
would be in a better position to drastically reshape the court if he is elected,
because the oldest justice right now is the liberal Ruth Bader
Ginsburg, 79. Romney would choose a conservative-leaning justice to
replace her, shifting the makeup of the court so that conservatives have
six votes and liberals just three. Ginsburg has hinted she will step
down when she's 82, which would be during the next presidential term.
If Ginsburg retires, Obama will almost certainly replace her with
another liberal justice and the court will remain split between four
reliably liberal justices and four even more reliably conservative
justices, with Justice Anthony Kennedy swinging between them, but more
often siding with conservatives. Obama's earlier two Supreme Court
appointments kept the status quo: He replaced two retiring liberal
justices with people of a similar ideological bent, leaving the balance
of the court unchanged.
But two of Ginsburg's conservative colleagues are not far behind her
in age, which means it's possible that Obama would be in a position to
replace Antonin Scalia or Anthony Kennedy, both 76, or Clarence Thomas,
74.
If Obama is able to replace Kennedy, a moderate conservative, or the
very conservative justices Scalia or Thomas, the court's ideological
make up would change dramatically.
A left-leaning court could alter laws on
same-sex marriage, gun rights, affirmative action, campaign finance,
property and a whole host of other legal issues we might not even know
about yet.
And such a move would have major
consequences. Geoffrey Stone, the former dean of the University of
Chicago Law School, found that if a liberal judge had replaced one of
the four most conservative judges starting in 2002, the liberal wing of
the court would have
won 17 out of the 18 most important Supreme Court cases over the past ten years,
including Citizens United, which struck down campaign finance reform
laws. Meanwhile, if a conservative judge had replaced one of the
liberals, the conservative wing would have won 16 out of the 18 cases,
including the health care reform case.
But first, the president would have to get such a person
nominated--and it might not be an easy task. The Supreme Court
confirmation process has become bitterly polarized in recent years, says
Stone. Obama's first two nominees--Justices Elena Kagan and Sonia
Sotomayor--both received an average of 35 "no" votes in the Senate, even
though they were nominated to replace judges of a similar ideological
bent, and were both widely regarded as qualified for the job. In the
past, such nominations sailed through, attracting an average of only
three "no" votes, Stone says.
With the stakes so high on altering the makeup of the court,
confirmation fights could get ugly. "There's a pretty good chance that
the minority of the opposing party would do everything they could to
prevent a shift," Stone said.
This suggests that the president could receive an all-out rejection
from the Senate if he replaces a conservative justice with a liberal one
in a second term. If that happens, Obama may be forced to look for a
"stealth" candidate, one who has a thin judicial record on
constitutional issues, to squeeze him or her through the confirmation
process. Stone describes the perfect under-the-radar candidate as
"somebody who everybody agrees is competent but nobody knows anything
about." This approach can backfire on the president, however. Think
about Justice David Souter. President George H.W. Bush nominated this
stealth candidate to replace the court's liberal leader, William J.
Brennan, without knowing where Souter stood on abortion, affirmative
action and other issues. Soon after his confirmation, Souter defected
from the conservative wing of the court, disappointing many on the
right.
Obama's short list will most certainly be skewed toward female
candidates, especially if Ginsburg retires on the president's watch.
"There will be real pressure to appoint another woman on the court so
there's no backsliding there," says Erwin Chemerinsky, founding dean at
the University of California, Irvine School of Law. Diane Wood, a judge
on the 7th Circuit, has been rumored to be on Obama's short list in the
past, but she will be 62 this year. Presidents generally aim to nominate
someone in their late 40s or early 50s for the spot, to maximize the
length of their tenure.
Jacqueline Nguyen, a recent Obama appointee to the 9th Circuit Court,
might fit the bill. She's in her late 40s, and also doesn't have an
extensive paper trail on controversial constitutional issues. Nguyen
also would be the first Asian-American on the court if nominated.
Illinois Attorney General Lisa Madigan and California Attorney General
Kamala Harris are also rumored picks. But both women would have to be
willing to give up their promising political careers to take the posts.
(Harris would be the first black woman ever appointed to the court.)
Paul Jeffrey Watford, another recent Obama appointee to the 9th Circuit who is in his 40s, might also be considered.
It's a guessing game that Supreme
Court watchers will continue to play until there's a nominee. And one
with significant consequences: Whoever makes the final cut, on either
side of the aisle, could alter the Court for years to come.
[Related: Meet the Supreme Court justices]
http://news.yahoo.com/blogs/ticket/obama-supreme-court-look-104535810--election.html
