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Get Ready for a More Conservative Supreme Court

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Posted on Apr 11, 2010

By Ruth Marcus

Here is an unsettling thought for those who waited eight years to have a Democratic president appointing judges: Barack Obama could well end his first term with a more conservative Supreme Court than the one he inherited.

This is, I hasten to admit, premature speculation—even with the not-so-surprise announcement that Justice John Paul Stevens, the anchor of the court’s liberal wing, is retiring. 

First, the president’s only nominee so far, Justice Sonia Sotomayor, has not even finished her first term. Where she turns out to be on the ideological spectrum in comparison to the justice she replaced, David Souter, is unknown.

Second, the accuracy of this conjecture will depend hugely on whom the president selects to fill the Stevens vacancy.

Finally, as the examples of Souter (named by President George H.W. Bush) and Stevens (selected by President Gerald Ford) demonstrate, predictions about a new justice’s future performance can make weather forecasting look like an exact science.

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Nonetheless, it’s entirely possible that a more conservative court could be Obama’s paradoxical legacy—particularly if he serves only a single term. The likelihood of the court shifting to the right is greater than that of its moving leftward.

In part, this could have been predicted even before Obama took office. It reflects less about him than it does the identity of the departing justices, one liberal followed by another. The next oldest justice is Ruth Bader Ginsburg, 77. Conservatives are reaping the benefits of Bush father and son having selected justices who were relatively young. Justice Clarence Thomas was 43 when tapped, Chief Justice John Roberts was 50, and Justice Samuel Alito was 55.

It would likely only be in the case of a departure by 74-year-old Justice Antonin Scalia—not likely to occur voluntarily during Obama’s presidency—or Justice Anthony Kennedy, 73, that the president would have an opportunity to dramatically alter the court’s ideological makeup.

But there’s little in Obama’s record as president to suggest that he would expend enormous capital to secure the most liberal possible justice. From the point of view of liberal groups, Obama’s nominees to the lower federal courts have been, overall, disappointingly moderate.

In selecting Sotomayor, Obama acted with an eye less to ideology than to ethnicity; the selection does not offer much of a clue into what the president is looking for, as a matter of constitutional interpretation, in future justices. The conservative howling about Sotomayor’s alleged radicalism had as little basis in reality as do the parallel assertions about Obama.

As Tom Goldstein of ScotusBlog put it after analyzing Sotomayor’s appellate record, “Our surveys of her opinions put her in essentially the same ideological position as Justice Souter.” From her conduct on the bench so far, there’s no reason to change that assessment.

By contrast, it’s likely, although not certain, that a Stevens replacement will be more conservative than the retiring justice. If so, this would be largely in line with history. In an interview with Jeffrey Rosen for The New York Times Magazine in 2007, Stevens noted, “including myself, every judge who’s been appointed to the court since Lewis Powell (chosen by Richard Nixon in 1971) has been more conservative than his or her predecessor.” Stevens excepted Ginsburg, who replaced the more conservative Byron White.

In any event, Stevens’ replacement is almost certain not to be as influential a player on the left as the departing justice. As the court’s senior associate justice, Stevens spoke immediately after the chief justice during the court’s discussion of cases; he had the power to assign opinions and some influence with swing justices such as Kennedy and, before her departure, Sandra Day O’Connor.

I’m not arguing, by the way, that Obama would go wrong by picking a Stevens successor likely to edge the court to the right. Indeed, there is a plausible argument that a justice viewed as more centrist might have more chance of bringing along conservative colleagues on a particular issue. Two of those mentioned as possible replacements, Judge Merrick Garland of the federal appeals court in the District of Columbia and Solicitor General Elena Kagan, are viewed as more moderate than Stevens. Either would be a superb choice.

But my prediction stands: The court that convenes on the first Monday in October is apt to be more conservative than the one we have now.

Ruth Marcus’ e-mail address is marcusr(at symbol)washpost.com.

© 2010, Washington Post Writers Group


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By johncp, April 14, 2010 at 10:37 pm Link to this comment

Hillary should get the SUPREME Court post, assuming she can stand working with Obama until he’s gone, by which time she’ll be considered top Chief Justice material.  But it’s all fantasy.  She should have been the president, and she had that essentially stolen from her, though nearly everyone will disagree with that assessment, it’s as unlikely that Obama would give her the opportunity to rise to the highest court, as it was that he would have played fairly in pushing her out of the presidency.  It’s clear, that if big business is fearful of Hillary on the Supreme Court, Obama will comply, and keep her out.  He knows that she’s considerably more liberal than he is, and he’ll yield to corporate demands.

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By Maani, April 14, 2010 at 9:24 pm Link to this comment

Kagan would be a horrible choice. See:

http://www.michaelbutler.com/blog/civic/2010/04/13/glenn-greenwald-on-why-elena-kagan-would-shift-the-supreme-court-to-the-right-and-the-death-of-dawn-johnsen’s-olc-nomination/

Oddly (and neither she nor I will believe that I am saying this…LOL), I agree with (and go even further re) something Anarcissie suggested: Hillary would be an excellent (perhaps even near-perfect) choice.  Sure, changing SOS’ in the middle of all of the current int’l issues (many of which Hillary is integrally involved in right now) would be highly irregular.  But it would not be the first time an SOS was replaced mid-term.  And unlike other choices, Hillary might well be “as influential a player on the left as the departing justice.”

See: http://thehill.com/opinion/columnists/brent-budowsky/91723-hillary-for-the-court?tmpl=component&print=1&page;=

Peace.

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By Anarcissie, April 13, 2010 at 6:40 am Link to this comment

I guess I should add to what I said before that Mr. O wouldn’t mind practicing a little judo with the appointment, as he did with Sotomayor—that is, pick someone who seems to represent a group of the electorate and sucker the Republicans into opposing him or her and thus seeming to disrespect the group.  But I think this is secondary to the main consideration, which is to appoint someone who will not oppose continued centralization of power and weakening of what’s left of the Bill of Rights and other limits to that power.  In this there is no conservative or liberal; they are all pretty much agreed on it.

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By OzarkMichael, April 13, 2010 at 5:47 am Link to this comment

purplewolf said: Obama needs to pull a Bush, put who he wants into whatever position he wants to when these goons are off on recess. Worked for Bush all the time.

Sorry but what you are saying is false. Bush did not place anyone on the Supreme court without Senate hearings. And contrary to what you said, it wont hurt the nation to have Senate hearings on Obama’s nominee.

Remember, its patriotic to disagree with this president or with any president and any administration.

At least thats what the Dems said when Bush was president. But now that its Obama, I guess it isnt patriotism anymore… its racism!

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By purplewolf, April 13, 2010 at 12:18 am Link to this comment

No matter whom Obama selects, we the people are going to have to put up with more repukelican B.S. about all their made up illogical foot dragging non-reasons to waste the taxpayers time and money by opposing any person selected for this position. Obama needs to pull a Bush, put who he wants into whatever position he wants to when these goons are off on recess. Worked for Bush all the time.

I am getting totally disgusted with all the wasted time spent by the repugs opposing everything Obama does and not getting real problems taken care of. These idiots were supposedly elected to do a job, now do it.

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By OzarkMichael, April 12, 2010 at 5:11 pm Link to this comment

This was a pretty balanced article, written to inform of what was likely to happen. There were no snide remarks about conservatives or illogical leaps of Leftist faith.

Ruth Marcus just explained how things are. It was informative.

One error, I think. She said about the trend has been for SCOTUS judges to be replaced by more conservative ones except “Ginsburg, who replaced the more conservative Byron White.” True that. It was a pretty good shift to the left, too.

But she attributes this statement to Stevens and I think that is an error. Considering that this same editorial was printed in the Washington Post I am surprised no one caught the mistake. Maybe I am wrong.

Anyway, I would have liked a longer description of Stevens’ role. He was an important influence on other judges, especially on close decisions. We all admire people like that. He not only got to the top of his field but worked hard and eventually commanded respect. I think Kennedy especially was influenced by Stevens’ reasoning.

A person like that cannot be replaced. It takes years to become that influential. A person like Stevens is not replaced even if Obama selects an ultra-ultra-liberal far to the left of Stevens.

So I agree with Ruth Marcus. And then some.

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By ocjim, April 12, 2010 at 2:15 pm Link to this comment

The forever partisanship of the neoconservatives and the Republicans has not only brought right-wing partisan justices into the supreme court through direct appointment but has assured that Obama stays somewhat right of center in his politics. His appointment to replace Stevens will most likely be moderate considering the continued obstructionism and intimidation of Republicans. Progressivism is surely dead.

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By Not One More!, April 12, 2010 at 1:56 pm Link to this comment

Obama is a ‘democrat’ like war is peace. Rest assured that Obama will not offer someone who will upset the apple cart that brought you the recent court decision that gave corporations the ability to openly buy the next election. Obama will maintain the status quo, which means protecting the corporate elite.

“Anyone who has the power to make you believe absurdities has the power to make you commit injustices.” ~Voltaire

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By Anarcissie, April 12, 2010 at 10:57 am Link to this comment

Obama plans to rule for two terms.  He will, therefore, pick someone who will not make trouble for him.  This means he will pick a loose-constructionist who is respectful of the established order—big business and big government—and not picky about civil liberties or other hindrances to government authority like limits to the commerce clause or presidential war powers.  Such a person is often humorously called “a liberal”.  I am afraid this leads us to the likes of the abominable Carl Sunstein, although I suppose parking Mrs. Clinton on the Court might seem advantageous.

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By G.Anderson, April 11, 2010 at 10:38 pm Link to this comment

Instead imagine this scenario….

The United States is invaded by a foreign power, who takes control of the entire apparatus of government. This foreign power then sets up a puppet government whose sole aim is to grind the people of The United states under the heal of repression, while selling each and every man women and child into slavery, while this foreign power loots the economy and enriches itself beyond the wildest dreams of avarice.

Elections are continued to be held, courts still meet in session, however their actions are have no meaning, because freedom is impossible under slavery.

Now instead of imagining a foreign power has taken over this country, imagine instead that the government has been replaced by Wall Street.

Under these curcumstances, it makes little difference who is on the supreme court.

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By benewbury, April 11, 2010 at 8:20 pm Link to this comment

“I’m not arguing, by the way, that Obama would go wrong by picking a Stevens successor likely to edge the court to the right. Indeed, there is a plausible argument that a justice viewed as more centrist might have more chance of bringing along conservative colleagues on a particular issue.”

How many times does that have to be the argument? This is how we’re getting woefully flawed legislation, now we’re extending it to judicial issues. Yes, ultra right-wing types are SO likely to hear out a ‘centrist.’ Also, people who own and run mines REALLY DO care whether their workers live or die. And there is morality in markets. And no one would ever hurt someone else for money. And Scalia is an honest person. Jeezus.

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