Have been reading some articles that seem to be making the case that if Obama is elected the best he can hope to accomplish is to maintain the current status quo in the USSC. However, if McCain is elected (so the theory goes) that this will mean a radical change in the current makeup, as several ‘liberal justices’ are due to retire soon (for various reasons), and supposedly this will mean highly conservative justices to replace them. Going on (again, according to what I’m reading), this will inevitably mean things like RvW will be overturned, the end of affirmative action, etc etc.
All this seems a bit over the top to me, but I figured I’d ask 'dopers what their thoughts are…even knowing that this is most likely to come down to politics even here. What I’d like is a realistic view of what might happen if either McCain or Obama is elected wrt the current SC makeup, and what a theoretical new court MIGHT actually do.
Well, the most clear replacement is John Paul Stevens. He is basically guaranteed to retire and is part of the liberal bloc of the current court. So that will shift things to a more clear conservative majority. Ginsberg is another highly likely replacement opportunity. The others are all pretty likely to remain for at least 4 years I think. The oldest remaining member would be 76 at that point. Perhaps a Scalia would retire if he new he would be replaced by someone in his image. Kennedy is also a possibility (which would also make the court slightly more conservative).
Assuming it’s just the first two, the courts makeup would be the 4 current conservatives plus 2 new ones for a pretty solid 6-justice majority. Then Kennedy’s potential swingingness wouldn’t matter.
It’s pretty clear that to keep the status quo would require an Obama presidency while McCain would cause a significant reshaping of the bench.
xtisme doesn’t say outright, but I believe he is implying, that these warnings do not take into account the fact that a President McCain would likely be dealing with a Senate with a Democratic majority of about 58, possibly as many as 60. How he would get arch-conservative justices through that Senate is a mystery to me. The court would become somewhat more conservative, but McCain would also have to play the hand he’s dealt.
Exactly. I’m thinking that even if by some chance McCain manages to squeak through and win this election that the ratio of Dems to Republicans is likely to change in the next election cycle…which is bound to have an effect. No?
Might this not be a different situation though? This time it will really be a balance issue…and also, the dynamic has changed in the relationship between the Dems and Republicans in the last 8 years. Or would the current Senate rubber stamp a very conservative nomination by McCain regardless?
If McCain were to present a highly qualified but very conservative nominee, the Democratic Senate would have to vote in favor of it, as long as there were no written opinions that were just so far out there that there was justification for voting against. They can’t just say “We don’t like him” as I understand it.
They can do whatever they like. It’s hard to imagine a nominee who would be acceptable to pro-life conservatives while not having any written opinions that would justify a “no” vote from liberals. How’s anybody going to advance as a judge without writing any opinions on controversial cases?
As far as I know (and I wrote a long paper on Supreme Court nominations once), that would be completely unprecedented and might provoke a constitutional crisis. Your other post is right on, though.
Marley23:
I stayed out of the Clarence Thomas thread because I didn’t want to get annoyed at everyone and I didn’t have time for lengthy, substantive replies, but that’s one example right there. (And Souter’s another, of course.)
Those days are over. Ever since Bork, the confirmation process has become highly partisan. McCain could never get a Scalia thru a Democratically controlled Senate.
This is why I hate getting involved in these threads. This statement simply isn’t true. There have been partisan confrontations over a nominee’s judicial philosophy and general suitability for the Court forever; take a look at some of the crap heaped on Louis Brandeis sometime.
Anyway, one of the reasons McCain wouldn’t be able to get Scalia through a Democratically-controlled Senate is because Scalia has proven himself to be so unnecessarily vitriolic and in many respects disrespectful of the comity of the court. Say what you want about Thomas’s qualifications (which were thin at best), but he’s comported himself with perfect professionalism and has stood well for his brand of constitutional interpretation.
McCain has, like Bush I before him, bought some cheap grace with the Christian Right by promising them very conservative appointments to the Federal judiciary. His Supreme Court appointments would be just about as conservative as he could find. He might even send some up to the Democratically-controlled Senate, knowing they’d be defeated, just to placate the Right. With so many key cases being decided 5-4 in recent years, the next appointment or two by either Obama or McCain could make an enormous difference in the court’s direction.
Read Jeffrey Toobin’s The Nine for an excellent discussion of the Supreme Court today (the book’s a good mix of law, history, politics and gossip), and an interesting - and sobering - look at the process of selecting Supreme Court justices during both the Clinton and Bush II administrations.
Well, come on. The Bork ordeal marked a significant change in the confirmation process, even if there may have been issues in the past. And how much of the Brandeis controversy was rooted in the fact that he was Jewish?
But we’d be talking about younger Scalia w/o his SCOTUS Justice baggage.
Um…very little of it. There were undercurrents of anti-Semitism, obviously, but the principal (and extremely heated) objections were to his progressive judicial philosophy.
Yes, but assuming that this younger Scalia was a Scalia clone with the same temperament and outlook, and assuming that the older Scalia was still on the bench, a Democratic Senate wouldn’t let it fly because they’d been burned before. If you’re positing that Scalia hadn’t previously been nominated to begin with, then there are too many variables at play.
Gah? Where’d you get your law degree from, Hoboken??
Or rather, wassyutalkinboutwillus?
Yes unprecedented, but if there were a couple vacancies on the court, when does the crisis occur? What’s the nature of it? Just a hint of your idea should do it, I figure I must be overlooking something.
The number of seats on the Supreme Court are determined by statute, if I remember correctly. It’s been at 9 for a while, but before then it had fluctuated. So my thinking is that if the President tried to artificially limit the Supreme Court to eight or fewer members, there’d be serious separation of powers issues. Or at least an interesting constitutional question.
Wouldn’t there?
…Now, don’t ask me how such a question could ever be adjudicated, or who would have standing to bring the claim (a representative or senator, presumably).
‘zactly. Forget about the whole mena xja twoi between the three branches, how could congress compel the prez to make any appointment? Wouldn’t the best (worst) they’d be able to do is pass a law, then impeach? If everything’s technically legit, the courts won’t monkey with the process (IIRC-that wasn’t Nixon da Judge, was it?) and this hypothetical collapses into a black hole. Note that the law wouldn’t have to pass Consti muster (sep o’ powers would suggest it wouldn’t), because THEY get to decide if it’s been violated, THEY have the impeach power.
