Stakes Much Higher for Dems, Says Lazarus

Richard Lazarus
Director, Supreme Court Institute at Georgetown University Law Center
Author of "The Making of Environmental Law"

(1) I would generally expect that they would be selecting out of a very similar pool of possible nominees with comparable backgrounds and outlooks. I would not anticipate huge differences. Either one is very likely to nominate a woman to fill the next vacancy on the Court. No doubt there are particular individuals who have a greater chance of being nominated by one candidate rather than another, simply based on personal familiarity. For instance, Professor Cass Sunstein of the University of Chicago, who recently announced that he will be joining the law faculty at Harvard, is reportedly close to Sen. Obama.

(2) I do expect that he will stick to a stricter constructionist model. If, however, he is elected president and the Democrats increase their Senate majority, to as high as 60, that would certainly limit the president's ability secure confirmation and might well effectively force the White House to pick a more moderate nominee. In either event, I would expect that Sen. McCain's short list would include prominent women, including Maureen Mahoney, one of the leading SCT advocates and [a] former clerk to Justice Rehnquist; also Janice Rogers Brown of the D.C. Circuit, and perhaps Debra Livingston, a recent Bush appointee to the Second Circuit. Current SG Paul Clement might well be on a short list, and former Fourth Circuit Judge Mike Luttig, a finalist when both Roberts and Alito were nominated, might well make a return visit to the Final Four.

3) No question, [the] stakes are much larger for the Democrats. The next three Justices likely to leave are Stevens (who will be 88 next month), Ginsburg, and Souter (who has reportedly told friends he would like to return to New Hampshire). That is three out of four of the more liberal Justices on the Court. Currently, the more liberal Justices can obtain major wins when Justice Kennedy joins their view. Were a Republican president able to replace just one of the three existing liberals with a Justice more conservative than Kennedy, that could affect the outcome in many of the Court's highest profile and most divisive cases. Kennedy's vote would no longer be so controlling. Replacing all three could constitute a sea-change, cementing and deepening a conservative majority on the Court literally for decades.

Read the rest of Scoop08's High Court Q&A Series:
Part 1: The High Court Q&A Series
Part 2: Klarman: Obama, Clinton Justices Would Have High Legal Credentials
Part 3: Stakes Much Higher for Dems, Says Lazarus
Part 4: Zywicki: Will McCain Make a Campaign Finance Reform Litmus Test?
Part 5: Traditional Liberal, Conservative Labels Less Helpful, Says Purcell
Part 6: Tushnet: One Appointment Could Change Court Dramatically
Part 7: Court Will Stay Far to Right, Says Lessig