The Magazine

Night of the Living Constitution

Explaining the judicial consequences of an Obama presidency

Oct 20, 2008, Vol. 14, No. 06 • By TERRY EASTLAND
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Have you noticed how the justices of the Supreme Court are living longer and longer, compiling more and more years of service--far more than they used to? Doubtless the justices tire of seeing their ages mentioned in stories triggered by the presidential race that contemplate who is most likely to retire and leave a vacancy to be filled. But here is what the birth certificates say:

John Paul Stevens, 88

Ruth Bader Ginsburg, 75

Antonin Scalia, 72

Anthony Kennedy, 72

Stephen Breyer, 70

David Souter, 69

Clarence Thomas, 60

Samuel Alito, 58

John Roberts (the chief justice), 53.

Stevens has served the longest of the nine, and by next July he will have completed 34 years, than which only five justices ever recorded more. (He is threatening the record in this obscure competition, which was set by the justice whose seat he took in 1975, William O. Douglas, who served more than 36 years.) Because of his age and length of service, Stevens is widely considered the most likely to step down, followed by Ginsburg. Both happen to be judicial liberals on a Court that has four liberals (Breyer and Souter being the other two) and four judicial conservatives (Scalia, Thomas, Alito, and Roberts). The fickle Kennedy tends to provide the fifth vote in close cases, particularly those involving abortion, race, and religion.

Now, John McCain promises to name judicial conservatives to the Court, while Barack Obama vows to pick judicial liberals. So you can see what could happen if McCain is elected president. For if there is a vacancy during his term, the departing justice is likely to be a judicial liberal. The same is true if there is a second vacancy. One can imagine a President McCain replacing liberals with conservatives and thus finally meeting that ancient Republican goal (dating from the 1968 presidential campaign) of an unambiguously conservative majority on the Court. In this liberal nightmare, the relatively youthful majority would be busy whittling away at Roe v. Wade, eliminating race-based preferences in the public sector, strengthening the government's hand in fighting terrorism, and facilitating a larger role for religion in public life--among many other bad, bad things.

But, for McCain, actually replacing liberals with conservatives would be far more easily said than done. Indeed, liberals who worry that a conservative majority could be created by the addition of a single McCain appointee also know that, regardless of who is elected president, a Democratic Senate will almost surely persist through the first two years of the next presidential term--and probably all four. With comfortable majorities, Senate Democrats will have the power to prevent the appointment of any nominee.

As for Obama, if he is elected president and Stevens or Ginsburg (or both) step down during his term of office, then he gets to replace a liberal with a liberal--maintenance work, you could call it, though the liberal cohort would become younger. Obama couldn't create a liberal majority unless at least one conservative, or man-in-the-middle Kennedy, were to step down, and that looks doubtful, at least in the next four years. Neither Kennedy nor Scalia shows signs of leaving the Court, and the three remaining conservatives are young, as young is measured on the Court--two of them have sat only briefly.

Still, if a conservative were to retire, President Obama would find himself in a winning situation as regards confirmation of his nominee. Indeed, it's hard to imagine a Democratic Senate rejecting any Obama nominee for any vacancy, at least not on grounds of judicial philosophy.

Which raises the question of Obama's judicial philosophy. We know what McCain's is. He is the nominee of a party that for decades has advocated interpreting the law on its own terms and not infusing it with ideas or values not found within the Constitution--a party that opposes government by judiciary and supports judicial restraint. The non-lawyer McCain reflects this philosophy in typically direct statements, such as this from a speech on the courts last spring at Wake Forest University: "A court is hardly competent to check the abuses of other branches of government when it cannot even control itself."

There can be little doubt that McCain accepts and will act in furtherance of his party's philosophy. He voted for the Roberts and Alito nominations, both of which Obama opposed, and he holds up both as models for the kind of judges he would appoint.