Supreme Court Hangs On Election

Washington Post: Direction Of Nation's Highest Court Could Be Decided By The Next President

(Washingtonpost.com)  This story was written by Robert Barnes.

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There were not many conspicuous tributes to the legacy of President Bush at last month's Republican National Convention, but there was at least one.
It was a campaign button with the words "Thanks, W" across the top and photos of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. beneath the letters.

Conservative legal activists view the two men as remarkable successes in Bush's quest to move the court to the right, and that is part of the reason that, as the court begins its work anew today, public attention is focused less on the cases at hand than on the court's future.

It is a future entirely dependent on whether Sen. John McCain or Sen. Barack Obama prevails in November.

"A President Obama or a President McCain will likely be handed an opportunity to affect the makeup of the Supreme Court that is unprecedented in our history," said Wendy Long, chief counsel for the Judicial Confirmation Network, which was active in generating public support for the confirmations of Roberts and Alito.

Obama, supported by a strongly Democratic Senate, could be presented with three openings during his first term, said Walter Dellinger, a prolific Supreme Court practitioner who was acting solicitor general in the Clinton administration.

He said it likely that Justices John Paul Stevens, 88, Ruth Bader Ginsburg, 75, and David H. Souter, 69, would step down in the next four years if Obama were elected.

"President Obama is going to be able, I think, to name whoever he wishes to the court and have that person confirmed," Dellinger said last week during a discussion at the Institute of Bill of Rights Law at William and Mary Law School.

But whether that would alter the court's basic dynamic is hardly clear.

The court is roughly balanced on important constitutional issues, with four consistent conservatives, four liberals and, in the middle, Justice Anthony M. Kennedy, who leans right on many issues but often joins liberals on some of the court's most controversial decisions.

Replacing liberals Stevens, Ginsburg and Souter with similar-minded justices would infuse the left wing of the court with younger leadership but leave the basic balance intact.

"What you really want to do in reshaping the court is change the median justice," said John McGinnis, a constitutional law expert and professor at Northwestern University. "That changes a lot more votes in the long run than just exchanging one liberal for another or one conservative for another."

To that end, advantage McCain.

The ages of the justices -- Souter is the youngest on the left, and Antonin Scalia is the oldest on the right at 72 -- favor the likelihood that the first opening would come from the liberal side. Stevens, although robust and in good health, is the second-oldest justice in the court's history. The fourth liberal is Justice Stephen G. Breyer.

Replacing one of the liberal justices with a consistent conservative such as Roberts and Alito -- the two McCain has said would serve as models for his picks -- could have far-reaching consequences on issues such as abortion, church-state separation, racial preferences and executive privilege.

But, as other presidents have found, justices take seriously their lifetime appointments and their legacies.

"We know from history that people generally do not leave the court when they're going to be replaced by someone they don't think is very much like them ideologically," McGinnis said.

Even if McCain has the chance to replace one of the liberals, he would face a formidable obstacle if Democrats control more than 55 seats in the Senate.

"It would be impossible for him to get somebody who's extremely conservative confirmed in . . . a Democratic Senate," said lawyer Miguel Estrada, whose nomination to a federal appellate court was blocked by Democrats.

McCain's best bet to appoint someone close to his "ideological ideal point," McGinnis said, would be to nominate a woman or a minority, who might be more difficult for Democrats to oppose. The last three appointments to the court have been white men, and there has never been a Hispanic justice.

Although there is no doubt the candidates would appoint very different people to the high court and lower federal judgeships, they also present a striking contrast in how they might approach the job.

Obama taught constitutional law at the University of Chicago, known for its analytic approach to the law, and would rely on his own thoughts on constitutional theories, said Cass R. Sunstein, a former colleague now at Harvard Law School and an informal Obama adviser.

"He knows these issues," Sunstein said. "I'd be very surprised if he wasn't extremely involved" in choosing nominees," Sunstein said, though he added that he has not had conversations with Obama about the qualities the Democrat would seek in a nominee.

Obama opposed Roberts and Alito and has mentioned Ginsburg, Souter and Breyer as models, although it was unclear whether he was looking only at the current court, rather than past justices, for examples.

Obama said in a speech this year that the court is in agreement much of the time. But on the important constitutional issues that divide the justices, "adherence to precedent and rules of construction will only get you through 25 miles of the marathon," Obama said.

"That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy."

McCain mocked such standards in a speech in May on the role of the judiciary, calling them "vague words" that "attempt to justify judicial activism."

McCain said he would appoint judges "who have a proven record of strict interpretation of the Constitution of the United States."

The Judicial Confirmation Network's Long said McCain's speech offered more details than "any presidential candidate in history" about the qualities he would look for in judges. But the judiciary has not been one of McCain's areas of specialty during his long tenure in the Senate, and others describe his interest as more of an outreach to conservatives, who consider the issue very important and have had a sometimes rocky relationship with him.

When the court narrowly decided that detainees held in the military prison at Guantanamo Bay, Cuba, have the right to access federal courts, McCain called it one of the "worst decisions in history." Asked two months later what prompted such a strong denunciation, he said: "Sometimes I'm given to a little hyperbole."

Both men have ready evidence that even justices they hold up as examples do not always decide issues the way they would like. Roberts and Alito are deeply suspicious of McCain's landmark legislative accomplishment, the McCain-Feingold campaign finance reform bill, and have voted to strike parts of it as unconstitutional.

Likewise, Ginsburg and Breyer were in the majority of a case that Obama said was wrongly decided, when they struck down the death penalty for the rape of a child.

Even the charge of "judicial activism" -- which is sometimes measured by a court's readiness to overrule legislation approved by a democratic body -- is becoming harder to define. Liberals, along with Kennedy, rejected Congress's mandate on the legal options for terrorism detainees. Conservatives, along with Kennedy, set aside the District of Columbia's gun-control law.

"The parties often argue about which is the party of judicial activism and which is the party of judicial restraint," Dellinger said. "I think it's pretty much a scoreless tie."

[hatesthecolt]

Lieberman needs to ''bolt'' the party before they kick him out. Come November they won''t need his vote anymore and I bet they give him the heave-ho. If they don''t they should... he has been a traitor to the party.

[p-syrus]

Exactly as Biden says, he LED on Bosnia.

He was THREE YEARS AHEAD in providing leadership. The bill that was finally passed would not have been negotiated were it not for Biden''s making the case for action. That Biden was not himself a key negotiator of that particular bill is incidental.

[donbl1]

So, Joe Biden invented the Internet?

[rmonroe401]

archibunker2,

Caused by the democrats huh arch, lets hear some details on how that is so. Or are you just another blowhard republican with all talk and nothing to back it up. No wonder you support McCain, he is exactly the same as you.

[sgreen2006]

Sarah Palin-Iran tie.
The founder of Alaska Independence Party Joe Vogler, the raging anti-American and Todd-Sarah''s political godfather, said, "My government is my worst enemy. I''m going to fight them with any means at hand."

"Vogler''s greatest moment of glory was to be his 1993 appearance before the United Nations to denounce United States "tyranny" before the entire world and to demand Alaska''s freedom. The Alaska secessionist had persuaded the government of Iran to sponsor his anti-American harangue.

That''s right ... Iran. The Islamic dictatorship. The taker of American hostages. The rogue nation that McCain and Palin have excoriated Obama for suggesting we diplomatically engage. That Iran."
Palin''s friend and AIP chairwoman Lynette Clark : "[Sarah] is Alaskan to the bone ... she sounds just like Joe Vogler."

http://www.salon.com/opinion/feature/2008/10/07/palins_unamerican/

Copy and paste this to spread it.

[duhrer]

archibunker2, like your namesake you think you have it all figured out. Lieberman is an opportunistic addled old man who can''t figure out which side of the fence to sit on, so your reference there is meaningless. I''m impressed by your broker''s political savvy, too bad he didn''t have enough savvy to rescue your waning 401k, but I wouldn''t put any stake in his social sciences expertise. And *** RU to judge people by whether or not they have fought in a war? Are you such a helmet-head that you can''t distinguish anymore between right and wrong behavior? Go check your ill-educated mouth at the door. It''s amazing how conservatives always seem to believe that they know all the right answers. Hubris.

[xrepublic4u]

MCCAIN IS RUNNING HIS CAMPAIGN A LOT LIKE HITLER RAN HIS!

[starleo146]

JACKSONVILLE, Fla. -- Supporters who lined up before dawn to hear Republican vice presidential candidate Gov. Sarah Palin speak at the Jacksonville Landing were still full of enthusiasm when Gov. Charlie Crist and Sen. Mel Martinez finally welcomed her to the stage.
After thanking the crowd estimated by party officials a 7,000 for "a warm Southern welcome" and saying she was so glad to be among friends, the Alaska governor first turned to some children in the audience. Thousands were turned back because of room.

Posted by archibunker2 at 04:45 PM : Oct 07, 2008

YES,and she is sent to only strong republican spots in states, so don''t look at the picture they want you to see only what it is.

[starleo146]

I am sick of this republican destruction, They destroyed this country, and now they see they are so behind in this election, they only have one option left destroy the man that can understand these problems better, seeing he graduated summa c*uM lade and the republican in the bottom 5th of his class, who out of Mc Sames''s own lips said he doesn''t understand economics,his economic adviser Phil Gramm understands only deregulation.This is what got us in this mess in the first place. Enough of the negatives our country is in the negative now if they Mc Same and Palin keep it up as angry as Americans are it will end very badly for the republicans, the swiftboat technique will not work anymore we want you to answer the issues of today. Put these top investor CEO''s in prison for there deals to protect them and not the hard earned pensions of Americans . SHAMEFULL

[questionnews]

There''''''''s just as much hate, venom and vitriol on the Dem side being lobbed against McCain and Palin, but of course, it only matters when it''''''''s the other way around. Come on kids, all together now, let''''''''s all have a make nicey-nice moment, hold hands, form a circle, sing the kumbaya song and sway to and fro. Perhaps this naivete will make things all better now.

Posted by Credibility2

Get real; Mc.Falin and the right wing attack dogs are the one spewing venom. As long as you look for the mote in the liberal''''s eye, you forget the barn door in your own.

Posted by usclimey at 04:18 PM : Oct 07, 2008

A complete post there.
It illustrates the classic "You guys suck......No you guys suck.
You guys preach hate!........No, you guys are the one''s preaching hate.

Listening to Dems & Repubs argue about which party is best for America is no different than listening to The Bloods & The Crips argue about which gang is best for the neighborhood.

[usclimey]

Desperation is the last refuge of a GOPig. From Mc.Carthy to Atwater, Nixon to Rove, the republicans have had a reputation that they couldn''t with an election without the lies they spread that are so voraciously gobbled up by the low-lifes they attract. There really hasn''t been anything as low as a GOPig in the Western World since.... well I really can''t think of when. You people really are the worst.

[usclimey]

Desperation is the last refuge of a GOPig. From Mc.Carthy to Atwater, Nixon to Rove, the republicans have had a reputation that they couldn''t with an election without the lies they spread that are so voraciously gobbled up by the low-lifes they attract. There really hasn''t been anything as low as a GOPig in the Western World since.... well I really can''t think of when. You people really are the worst.

[thinkdeeply8]

%u201CI saw no evidence of a radical streak, either overt or covert, when we were together at Harvard Law School,%u201D said Bradford A. Berenson, who worked on the Harvard Law Review with Mr. Obama and who served as associate White House counsel under President Bush. Mr. Berenson, who is backing Mr. McCain, described his fellow student as %u201Ca pragmatic liberal%u201D whose moderation frustrated others at the law review whose views were much farther to the left.

[usclimey]

There''''s just as much hate, venom and vitriol on the Dem side being lobbed against McCain and Palin, but of course, it only matters when it''''s the other way around. Come on kids, all together now, let''''s all have a make nicey-nice moment, hold hands, form a circle, sing the kumbaya song and sway to and fro. Perhaps this naivete will make things all better now.

Posted by Credibility2

Get real; Mc.Falin and the right wing attack dogs are the one spewing venom. As long as you look for the mote in the liberal''s eye, you forget the barn door in your own.

[redbds]

I can''''t believe this. The blogs are lighting up with news about McCain rallies where people have shouted that Obama is a terrorist and that he should be killed. There are even reports that journalists have been booed and that one African-American crew member was racially slurred. More importantly, McCain or Palin have made no efforts to condemn or even respond to any of this. Yet, there is nothing about this in this site. The McCain "strategy" is leading to hate mongering and racial attacks and THIS is what this network decides to report on? What the heck is wrong with journalism in this country?

Posted by mooshe47 at 02:26 PM : Oct 07, 2008

Nothing that McCain is doing or saying is leading to racial incidents. No news source is reporting what you are saying here. Are you sure that it isn''t just being made up. As far as hate goes, that is nothing new on either side.

[credibility2]

There''s just as much hate, venom and vitriol on the Dem side being lobbed against McCain and Palin, but of course, it only matters when it''s the other way around. Come on kids, all together now, let''s all have a make nicey-nice moment, hold hands, form a circle, sing the kumbaya song and sway to and fro. Perhaps this naivete will make things all better now.

[joann561]

Nice work gun_tower. McCain''s/Palin''s character attacks have done nothing but open the door for discussions of McCain''s shady past, which is by far less known than the well-documented and entirely debunked Obama "relationships." The other thing it''s done is unfortunately bring out hate speech. When Palin was talking about Obama at a rally, someone yelled "kill him." When McCain was talking about Obama yesterday at a rally, someone yelled "Muslim" and someone yelled "terrorist." McCain smirked both times. Palin heard the "kill him" shouts and did nothing. Now today I come on blogs and see all kinds of hate speech about how people want to see Obama killed. That is disgusting, and if Obama is harmed, I think many of us will hold McCain and Palin accountable. I am not proud of my country right now. Hate must end. As someone else pointed out on this blog, we do not have the right to hate or wish harm to happen to anyone. If this were being said about McCain, I would be equally disgusted.

[teddie56]

Hate is not a God-given right you know? None of us have the right to take another life, discuss the taking of another life, or even wish for the taking of another life. Any argument to the contrary is indefensible and counters every one of the many great values this country has to offer.

[teddie56]

The first Amendment does not apply to treason. You should look it up. We have a thing called the Constitution that some of us still follow. In case you haven''t heard, the Confederacy Papers are no longer in play you fascist

[teddie56]

They''ve removed your comments you ***. I''ve said it now 4 times. Maybe you should write it down. THEY ARE REMOVING YOUR COMMENTS BECAUSE YOU ARE TALKING ABOUT ASSASSINATION. I am online with media relations right now, and they agree with me that even idle threats or jokes about assassination are reportable offenses. Don''t lecture me you anti-American scum.