Monday, May 4, 2009

Elections Have Consequences: Obama Will Get Three SCOTUS Picks

This post is the second in a series entitled "Elections Have Consequences".

Kaw & Border is usually focused on state and local politics but from time to time we will also focus on national politics as well. This seems appropriate this week given the news that Supreme Court Justice David Souter is retiring.

At first glance, this doesn't appear to be that earth shattering, given the fact Souter (though appointed by Bush 41 and opposed by liberals at the time) is one of the court's liberal justices and will likely be replaced by a liberal, thus not altering the court's makeup. Plus, with 60 seats in the Senate, it is likely Obama will have little to no resistance in appointing a left-wing liberal.

Basically, for those who believe in originalism, there is not too much to hope for in regards to the replacement, other than perhaps that Souter's replacement might do the reverse of what Souter did himself -- rather than being appointed by a Republican and ending up a liberal, perhaps Obama will pick someone who ends up being conservative. For those who hold a rather dim view of Souter's tenure on the court, this would be poetic justice indeed.

However, that is not likely to occur. The fact is elections have consequences and the most profound impact a President can have domestically is on judicial appointments, particularly the Supreme Court. This is the one area where a President can leave his or her mark for literally decades -- in a positive or negative away.

For 12 years -- from 1980 to 1992 -- Republicans held the presidency -- and we got two solid conservatives (Thomas and Scalia), two moderates (O'Connor and Kennedy) and one liberal (Souter) out of the five appointments. For those who prefer sonstitutionalists to be writing for the majority and not the minority, two for five is not a good record when dealing with the Supreme Court. The good news is that one of the two moderates was replaced by a conservative -- Samuel Alito. The other moderate (Kennedy) remains.

The startling stat here though is that it has been 17 years since the Reagan-Bush 41 period and now, just the second justice from that period is leaving. The other justices are John Roberts (Bush 43), John Paul Stevens (appointed by Nixon), and Ruth Bader Ginsburg (Clinton).

In addition to Souter, it is highly likely that Obama will get to appoint at least two more people, quite likely in his first term, to replace Stevens and Ginsburg. Due to age (for both) and health (for Ginsburg), it is more likely than not that both will recognize the huge opportunity before them (with Dems holding 60 seats) for their successor to be as liberal as they are.

So, while replacing three liberals with three liberals won't alter the balance of the court, what it will due is effectively re-set the clock ideologically in terms of any hope of a more conservative cour, because Obama will likely appoint much younger justices who have the potential of being on the court for 20-30 years, cementing the court in terms of any hope for a drift towards Constitutionalism and away from the "living document" and "invented rights" we've seen from the liberal bloc. Even if Obama were to get no more appointments and were defeated in 2012, only the Kennedy and Breyer seats would be potential seats for a shift to the right.

What's even more scary is that should Kennedy or say, one of the conservative appointments (like Thomas and Scalia) leave before Obama leaves, the court will move dramatically to the left and in a permanent way. One can only hope, at least in the case of Thomas and Scalia, that they will take a page out of the Stevens/Ginsburg/Souter playbook and wait out the Obama clock like the liberal trio did with 8 years of Bush -- and that Kennedy will want to avoid giving Obama the ability to essentially pick his own court majority. Nothing would be more dangerous for those who believe the nation should have a bedrock of consitutional principles.

The message here for those in politics is very real -- elections matter. If a Republican who believed in the nation's first principles had been elected, we would be talking about judges like Diane Sykes, Edith Jones or Janice Rogers Brown for the court. Instead, we are talking about ACLU-like liberals who will follow in the mold of Ginsburg -- and potentially giving Obama complete reign to do as he pleases -- and preventing any subsequent Republican administration from reversing some of the damage the president is doing.

For the sake of the nation, here is hoping Obama gets his own version of Souter and that whoever he picks is a closest Constitutionalist. Right.