What The 2012 Election Means For The Supreme Court
If Romney wins, we can expect a frighteningly conservative high court. A victory for Obama could mean a liberal majority for the first time since 1969.
by Erwin Chemerinsky
October 30, 2012
http://www.latimes.com/news/opinion...y-scotus-future-20121030,0,782910,print.story
The future of the Supreme Court is the forgotten issue in this year's presidential election. This is surprising and disturbing because a president's picks for the federal judiciary are one of the most long-lasting legacies of any presidency. There is a sharp contrast between the types of individuals that Barack Obama and Mitt Romney would place on the Supreme Court and the lower federal courts, yet neither is saying much about it.
Recent history powerfully shows the importance of presidential elections to Supreme Court decision-making. Imagine that Al Gore or John Kerry had been elected president and one of them, rather than George W. Bush, had been able to replace William Rehnquist and Sandra Day O'Connor in 2005. The high court likely would not have found a right for corporations to spend unlimited amounts of money in elections in Citizens United vs. Federal Election Commission (2010), or a right of individuals to own and possess guns in District of Columbia vs. Heller (2008), or upheld the federal Partial Birth Abortion Ban Act in Gonzales vs. Carhart (2007).
By contrast, if John McCain had been elected in 2008 and replaced David H. Souter and John Paul Stevens, the court surely would have upheld Arizona's restrictive immigration law, SB 1070, in Arizona vs. United States (2012), and there would be six votes on the court to eliminate affirmative action in Fisher vs. University of Texas, which was argued on Oct. 10.
There certainly is the possibility for a vacancy on the Supreme Court during the next presidential term. Four justices are in their mid- to late 70s: Ruth Bader Ginsburg is 79; Antonin Scalia and Anthony M. Kennedy are both 76; and Stephen G. Breyer is 74. Although it is conceivable that none of these justices will leave the bench in the next four years, most think that one or two vacancies are likely.
The stakes are potentially enormous. For example, Romney has expressly said that he wants to see Roe vs. Wade overturned, while everyone expects that any Obama nominees to the court would vote to affirm it and keep a constitutional right to abortion. On the current court there are four sure votes to overturn Roe: Chief Justice John G. Roberts Jr. and Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. If Romney were to be president and able to replace Ginsburg or Breyer, there would be five votes to overrule Roe, and once more, women in many states would be left to choose between an unwanted pregnancy and an unsafe, illegal abortion.
On the other hand, if Obama is reelected and has the opportunity to replace, say, Scalia or Kennedy, there would be a liberal majority on the court for the first time since 1969. It is likely that these justices would reconsider Citizens United and undo the devastating effect that this decision has had on our political system in allowing unlimited corporate expenditures in elections. There surely would be a majority to allow marriage equality for gays and lesbians, though this may already exist if Kennedy is willing to join the four liberal justices in finding such a right.
Although much less visible, presidential elections also determine the composition of the lower federal courts. The vast majority of cases are never heard by the Supreme Court. Last year, the high court decided only 65 cases out of almost 10,000 petitions for review. In the overwhelming majority of cases in federal courts, it is the appeals courts that get the last word. Federal district court and court of appeals judges also have life tenure and often remain on the bench for decades. There has been a huge difference between Democratic and Republican appointees in areas such as individual liberties, civil rights and access to the courts.
So why are the candidates ignoring this issue? Their advisors probably have told them that voters don't care, or at least that it is unlikely to matter to the crucial undecided voters. But this may well be creating a self-fulfilling prophecy because voters won't care unless the candidates choose to make the composition of the courts an important election issue.
But I have seen that audiences do care greatly about the future of abortion rights, the corrosive effects of money in politics, the rights of gays and lesbians to marriage equality and so many other issues that are decided by the courts. All this and so much more will turn on who picks the next Supreme Court justices.
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For Obama, A Record On Diversity But
Delays On Judicial Confirmations
by John Schwartz
August 6, 2011
http://www.nytimes.com/2011/08/07/u...gewanted=2&sq=judicial nominees&st=cse&scp=1#
President Obama made history when he nominated Sonia Sotomayor, the first Hispanic justice on the Supreme Court. He did it again with his second nominee, Elena Kagan, raising the number of women on the nation’s highest court to three.
<br> And Mr. Obama has also added judicial diversity further down the federal ladder. His administration has placed a higher percentage of ethnic minorities among his nominees into federal judgeships than any other president.
<br> <SPAN STYLE="background-color:YELLOW"><b>So far, Mr. Obama has had 97 of his judicial nominees confirmed — compared with 322 for President George W. Bush and 372 for President Bill Clinton, who each served two terms. So far in Mr. Obama’s presidency, nearly half of the confirmed nominees are women, compared with 23 percent and 29 percent in the Bush and Clinton years.
<br> Some 21 percent are black, compared with 7 percent under Mr. Bush and 16 percent under Mr. Clinton. And 11 percent are Hispanic, compared with 9 percent under Mr. Bush and 7 percent under Mr. Clinton. Of the nearly two dozen nominees awaiting a Senate confirmation vote, more than half are women, ethnic minorities or both.</b></span><div align="right"><!-- MSTableType="layout" --><img src="http://i.min.us/ij8xWw.PNG" align="right"></div>
<br> Race is not the only measure of diversity under consideration by the administration — for example, J. Paul Oetken was the first openly gay man to be confirmed to the federal judiciary, in his case in the Southern District of New York. Mr. Obama has presented three other openly gay nominees to the Senate as well.
<br> “The president wants the federal courts to look like America,” said Kathryn Ruemmler, the White House counsel. “He wants people who are coming to court to feel like it’s their court as well.”
<br> Curt A. Levey, the executive director of the Committee for Justice, a conservative legal organization that often speaks out on judicial nominations, said discussions of diversity tracked old debates over affirmative action.
<br> “Diversity is a good thing, but how do you achieve it — by quotas?” he said. “Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?”
<br> “The more you focus on race and gender,” Mr. Levey added, “the less you’re going to focus on other traditional qualifications — that’s simply the math of it.”
<br> Besides, he said, “If you believe in proportionalism, as the Obama administration appears to, given the way they tout these numbers, the other races are, to some degree, getting stiffed.”
<br> Thomas H. Dupree Jr., former principal deputy attorney general in the George W. Bush administration, said ethnic diversity was one factor that should be weighed with other factors.
<br> “It is important to think about how a candidate’s past experience in the law may give them knowledge or a perspective that can strengthen our judiciary,” he said.
<br> “A judge who has spent his career as a prosecutor may bring a different perspective to applying the law than a judge who has been a law professor,” he added, “just as a judge who spent her prior legal career as a litigator may see things differently from someone who worked at a public interest firm.”
<br> Mr. Dupree, who has signed on with a group advising Mitt Romney, the Republican presidential candidate, on judicial selection, emphasized that he was speaking only for himself.
<br> Ms. Ruemmler said the administration does seek a broad range of life experiences in nominees.
<br> “It’s not just about race, it’s not just about gender, it’s not just about experience,” she said. “We try to look at judges in a much more holistic way.”
<SPAN STYLE="background-color:YELLOW"><b><br> Getting nominees confirmed has proved a challenge for the administration. A recent report from the Constitutional Accountability Center in Washington said the federal judiciary had had more than 750 days with at least 80 vacancies on the federal bench, which adds to the workload of an already overburdened judiciary. </b></span>
<SPAN STYLE="background-color:YELLOW"><b><br> “Never before has the number of vacancies risen so sharply and remained so high for so long during a president’s term,” wrote the group, which noted that all presidents come into office with a backlog that gets worked down more quickly over time.</b></span>
<br> Judicial nominations have been a source of escalating conflict since the fight over President Ronald Reagan’s attempt to nominate Robert H. Bork to the Supreme Court in 1987. Over the years, fights have included refusals by Senate Republicans to hold hearings on Mr. Clinton’s nominees and Democratic senators filibustering nominees of Mr. Bush.
<br> Now that conflict is just one of many in a continuing battle between Congress and the president that also includes nominations to the executive branch and efforts to pass major legislation.
<br> While Mr. Obama was relatively slow to nominate judges earlier in his term, his team has now sped up, the group said. But Congress has been slow to confirm nominees, some of whom “go through committee without any opposition and still spend months and months waiting for a vote on the Senate floor,” said Doug Kendall, the group’s founder. “That’s never happened before, and it’s a big part of the reason the judicial vacancy problem has reached crisis proportions.”
<br> Ms. Ruemmler said, “We would obviously like the pace to improve.”
<br> Liberal activists say there is a political agenda involved. “Republicans are using judgeships as political pawns in a partisan game,” said Nan Aron, the founder and president of Alliance for Justice, a liberal advocacy group in Washington.
<br> John Ashbrook, a spokesman for the Senate minority leader, Mitch McConnell of Kentucky, disagreed with the notion that politics was slowing confirmations, noting that the Senate had confirmed a handful of judges before going into its current recess.
<br> “Senate Republicans didn’t object to any of the judicial nominees that the majority proposed this week,” he said. “In fact, our members agreed to confirm several judges.”
<br> Mr. Levey said that while his group and others had mounted resistance to several Obama nominees, including Goodwin Liu, a nominee to the United States Court of Appeals for the Ninth Circuit who withdrew after a Senate filibuster, there was no overarching campaign to slow the process.
<br> “If there is a plan to delay these noncontroversial nominees, nobody has told me about it,” he said. He instead attributed the pace of confirmations to “the general lack of cooperation on all issues” in Congress.
<br> Either way, the effect might be the same, said Ms. Aron, whose organization issues regular reports on judicial nominations. She warned that confirmations slow to a trickle during an election year.
<br> “We’re looking at the next seven months as the time that the pace of confirmations has to accelerate to have a fully staffed judiciary,” she said. “The window is closing soon.”
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