One of the most enduring powers a President exercises is the nomination of Justices to the Supreme Court. As lifetime appointees, Justices typically remain on the Court long after the Presidents who selected them are gone from office. And in deciding the most fundamental questions about freedom and authority in our republic, the influence these Justices have on the values, direction and history of the nation oftentimes surpasses that of the Presidents who were responsible for putting them on the Court in the first place.
President-elect Barack Obama may well get the opportunity to exercise the appointment power before too long. It is likely that one or more Justices will retire within the first few years after Obama takes the oath of office. In replacing those retiring Justices with his own selections, the new President will put his own mark on the Court and, ultimately, affect the philosophical and jurisprudential character of the Court's decisions.
Although he was just elected last night, it's certainly not too early to consider which Justices might be retiring--i.e, the Justices President Obama might be replacing, the ones who might give him the opportunity to remake the Court. Here they are in some rough order of the liklihood of their retiring:
John Paul Stevens--appointed by Ford in 1975; liberal [age 88; certainly wants a Democratic President to choose his successor]
Ruth Bader Ginsburg--appointed by Clinton in 1993; liberal [age 75; has had health problems; certainly wants a Democratic President to choose her successor]
David Souter--appointed by Bush (41) in 1990; liberal [relatively young, 69, but reportedly is not particularly happy; certainly wants a Democratic President to choose his successor]
The rest:
Anthony Kennedy--appointed by Reagan in 1988; moderately conservative [not particularly old, 72; unlikely to want to leave his strategic position as the Court's swing vote]
Stephen Breyer--appointed by Clinton in 1994; liberal [not particularly old, 70; no suggestion he'd like to leave any time soon; but certainly would want a Democratic President to choose his successor]
Antonin Scalia--appointed by Reagan in 1986; conservative [not particularly old, 72; very unlikely to leave with a Democratic President to choose his successor]
Clarence Thomas--appointed by Bush (41) in 1991; conservative [relatively young, 60; not particularly happy, but very unlikely to leave soon, esp. with a Democratic President]
John Roberts--appointed by Bush (43) in 2005; conservative [young, 53; newly appointed; unlikely to leave with a Democratic President]
Samuel Alito--appointed by Bush (43) in 2006; conservative [young, 58; newly appointed; unlikely to leave with a Democratic President]
In short, the most likely to retire are Stevens, Ginsburg and Souter. All are liberals. So President Obama is likely going to be replacing only liberals, not conservatives [at least in his first term]. And replacing these liberals with liberals--which is almost certainly what President Obama would do--will NOT do much to affect the ideological composition of the Court.
On the other hand, if an Obama appointee is especially adept socially, politically, and intellectually in influencing colleagues--for example, as William Brennan was according to most accounts--than that appointee might well make a difference. Such a liberal Obama appointee, though simply replacing another liberal, might well alter the ideological dynamics within the Court.
As for all and any of this, we shall see. And perhaps sooner than later.
President-elect Barack Obama may well get the opportunity to exercise the appointment power before too long. It is likely that one or more Justices will retire within the first few years after Obama takes the oath of office. In replacing those retiring Justices with his own selections, the new President will put his own mark on the Court and, ultimately, affect the philosophical and jurisprudential character of the Court's decisions.
Although he was just elected last night, it's certainly not too early to consider which Justices might be retiring--i.e, the Justices President Obama might be replacing, the ones who might give him the opportunity to remake the Court. Here they are in some rough order of the liklihood of their retiring:
Ruth Bader Ginsburg--appointed by Clinton in 1993; liberal [age 75; has had health problems; certainly wants a Democratic President to choose her successor]
David Souter--appointed by Bush (41) in 1990; liberal [relatively young, 69, but reportedly is not particularly happy; certainly wants a Democratic President to choose his successor]
The rest:
Anthony Kennedy--appointed by Reagan in 1988; moderately conservative [not particularly old, 72; unlikely to want to leave his strategic position as the Court's swing vote]
Stephen Breyer--appointed by Clinton in 1994; liberal [not particularly old, 70; no suggestion he'd like to leave any time soon; but certainly would want a Democratic President to choose his successor]
Antonin Scalia--appointed by Reagan in 1986; conservative [not particularly old, 72; very unlikely to leave with a Democratic President to choose his successor]
Clarence Thomas--appointed by Bush (41) in 1991; conservative [relatively young, 60; not particularly happy, but very unlikely to leave soon, esp. with a Democratic President]
John Roberts--appointed by Bush (43) in 2005; conservative [young, 53; newly appointed; unlikely to leave with a Democratic President]
Samuel Alito--appointed by Bush (43) in 2006; conservative [young, 58; newly appointed; unlikely to leave with a Democratic President]
In short, the most likely to retire are Stevens, Ginsburg and Souter. All are liberals. So President Obama is likely going to be replacing only liberals, not conservatives [at least in his first term]. And replacing these liberals with liberals--which is almost certainly what President Obama would do--will NOT do much to affect the ideological composition of the Court.
On the other hand, if an Obama appointee is especially adept socially, politically, and intellectually in influencing colleagues--for example, as William Brennan was according to most accounts--than that appointee might well make a difference. Such a liberal Obama appointee, though simply replacing another liberal, might well alter the ideological dynamics within the Court.
As for all and any of this, we shall see. And perhaps sooner than later.
[For more on the ideological breakdown of the current Court and the voting patterns of the individual justices, see previous posts on the New York Court Watcher: Another GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order), Oct.24, 2008; Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!]), Oct. 14, 2008; GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Parts 1 & 2 Recap in Graphs: Discrimination & Cultural Issues), September 24, 2008; Part 2: Cultural Issues, September 20, 2008; Part 1: Discrimination, September 16, 2008.]
