Monday, February 18, 2013

Obama's Legacy: A Liberal Supreme Court?

President Obama has already appointed two Supreme Court justices during his first term and may have the opportunity to appoint as many as three during his second term and tilt the ideological tilt of the court from conservative to liberal, but much of that will depend on who decides to retire and or passes away during his second term.

Four of the nine justices are in their 70’s. Of the four two are considered liberals (Ruth Bader Ginsburg and Steven Bryer), one conservative (Antonin Scalia) while the fourth (Anthony Kennedy) votes with conservatives the majority of the time is considered the swing vote. Ginsburg, who is a two time cancer survivor (colon and pancreatic) will turn 80 in March 2013 , but has made no public announcement that she plans to retire. Bryer will be 75 in August 2013 and he has not given any hints of retiring. Both were appointed by Clinton and would more than likely retire while a Democrat was in the White House. Both Scalia and Kennedy will turn 77 in 2013.

Per the Constitution the Senate in its role of Advise and Consent votes whether to confirm the president’s nominations to lifetime appointments to the federal bench including the High Court. Currently the Democrats control 55 (two independents are caucusing with the Democrats) so 2013 would be the ideal time for President Obama to replace both Ginsburg and Bryer because Democrats will be defending 20 seats while Republicans will only be defending 13 in 2014 and usually without a top of the ticket race to drive turnout the incumbent party which occupies the White House usually loses seats in both chambers. Of the twenty Senate seats Democrats will be defending in 2014 five of them will be in red states. Those five states are West Virginia, Alaska, Louisiana, Arkansas, and North Carolina. Romney won West Virginia by 26 percentage points and incumbent Democrat Jay Rockerfeller who has represented West Virginia for over thirty years has decided that he won’t run for re-election. In 2012 President Obama lost Alaska, Louisiana, Arkansas and North Carolina by 14, 17, 23, and 2 percentage points respectively so those seats are definitely vulnerable to a Republican takeover in 2014. The only potential pickup for the Democrats in 2014 is the Maine Senate seat currently occupied by Republican Susan Collins because President Obama carried Maine by 15 points.

A Republican takeover of the Senate after the 2014 elections would make it more difficult for President Obama’s nominee to be confirmed and the President would have to find a candidate whom the Republican majority would find more ideological palatable. Another variable is that one of the more divisive cases currently before the Supreme Court may factor in the turnout in 2014. Experts believe that the Supreme Court could vote to overturn the Defense of Marriage Act which allows states to ignore the Full Faith and Credit Clause of the Constitution which requires among other things that a marriage recognized in one state be legally recognized in the other forty-nine. The problem is that although five states now recognize gay marriage 30 other states have voted to make gay marriages illegal.

If President Obama is able to replace both Justices Ginsberg and Bryer with liberal justices in their late 40’s or early 50’s, and if either Scalia or Kennedy retires or passes away and the Republicans fail to secure a majority after the 2014 midterms or they decline to filibuster President Obama will have the chance to tip the ideological balance of the Supreme Court for at least a quarter century.

Even though President Obama has already increased diversity on the Court by appointing the first Hispanic, if given the chance President Obama could nominate the first Asian, first openly gay Justice or the first black female to the High Court. Whether President Obama nominates two or three more Supreme Court Justices he will leave a legacy that will impact American jurisprudence for decades to come.