Tushnet: One Appointment Could Change Court Dramatically

Mark Tushnet
William Nelson Cromwell Professor of Law, Harvard Law School
Author of "Out of Range: Why the Constitution Can't End the Battle over Guns"

Photo courtesy of Aspen Publishers

(1) It's not clear to me that there are any; they'll be drawing pretty much from the same pool, and any differences will be small.

(2) I would expect McCain to carry through on his promise, so I don't think that there's an obvious maverick for him to name.

(3) The stakes, in the long run, are about equally high. Everyone expects that the first vacancies will be replacements for "liberals" on the Court today. A Republican president would consolidate conservative control of the Court. But, after the first vacancies, one or two positions held by "conservatives" will open up – and at this point it would take replacement of only one conservative by a liberal to change the Court's overall leanings quite dramatically.

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

For more insight into the election's potential impact on the Supreme Court, Scoop08 recommends these stories.

A Card-Carrying Civil Libertarian
Jeffrey Rosen, The New York Times
March 1, 2008

"If Barack Obama wins in November, we could have not only our first president who is an African-American, but also our first president who is a civil libertarian. Throughout his career, Mr. Obama has been more consistent than Hillary Clinton on issues from the Patriot Act to bans on flag burning. At the same time, he has reached out to Republicans and independents to build support for his views. Mrs. Clinton, by contrast, has embraced some of the instrumental tacking of Bill Clinton, whose presidency disappointed liberal and conservative civil libertarians on issue after issue.

In the Senate, Mr. Obama distinguished himself by making civil liberties one of his legislative priorities. He co-sponsored a bipartisan reform bill that would have cured the worst excesses of the Patriot Act by meaningfully tightening the standards for warrantless surveillance. Once again, he helped encourage a coalition of civil-libertarian liberals and libertarian conservatives. The effort failed when Hillary Clinton joined 13 other Democrats in supporting a Republican motion to cut off debate on amendments to the Patriot Act.

As a former grass-roots activist, Mr. Obama understands the need to make the case for civil liberties in the political arena. At a time when America's civil-libertarian tradition has been embattled at home and abroad, his candidacy offers a unique opportunity."

The 2008 Election and the Supreme Court
Robin Toner, The New York Times
July 4, 2007

"President Bush's promise to change the makeup of the Supreme Court was one of his most reliable applause lines, as candidate and as president. It energized conservative activists like few other issues, kept them going in the face of other disappointments, kept them loyal and focused on the long view.

As the 2008 campaign heats up, the question naturally arises: Can the left mobilize as effectively when it comes to the court and judicial appointments in general?

There is no doubt about the unhappiness of liberals with the current court, which now bears Mr. Bush's unmistakable imprint. They were reeling last week as the court finished up its first full term with Mr. Bush's appointees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. It was a session marked by a sharp turn to the right in a series of 5-to-4 decisions, from upholding a federal ban on a type of abortion to limiting school districts' ability to use racially conscious criteria to achieve or maintain integration.

Democrats on Capitol Hill and on the presidential campaign trail were furious, especially, some said, because of Mr. Roberts' promises of humility and respect for precedent, delivered repeatedly when he sought confirmation from the Senate. 'Given what he said to us,' said Senator Charles E. Schumer, the New York Democrat and a member of the Judiciary Committee, 'my Democratic colleagues and I would never have envisioned the string of decisions that he issued recently.'"

Dems' Choices For Bench Surprisingly Slim
Jeffrey Rosen, The New Republic
Feb. 26, 2008

"Democrats dream about the possibility of retaking the White House in 2008, they are also fantasizing about their first Supreme Court appointments since 1994. But the bench of potential candidates is surprisingly thin. For several decades, presidents have drawn their Supreme Court nominees from the ranks of appellate judges appointed by previous presidents of the same party. And, because the Democrats have been out of the White House for two terms, most of the sitting Democratic appellate judges are too old to be considered plausible Supreme Court candidates. For this reason, a President Barack Obama or Hillary Clinton might have to look for candidates in unexpected places."

Balance the court: A Democratic president could bring equanimity to the Supreme Court
Stephen Henderson, Detroit Free Press
March 2, 2008

"With all the history that seems to be in the making in the 2008 presidential election, little attention has been paid so far to another big change that could be coming to Washington: the possibility of more Democratic appointments to the U.S. Supreme Court than we've seen in 40 years.

If the Democrats win the White House in November and, as expected, increase their majority in the Senate to somewhere near 55 votes, the stage will be set for just about any choice the president makes to be confirmed for the high court.

And the vacancies could be plentiful, particularly if a President Clinton or Obama serves two terms. Four justices are over 70 (one will be 88 this year), one other will be 70 this year, and another is 68. All six would be close to 80 by 2016, which historically has been something of a marker age for serving on the court."

Analysis: The Court and the 2008 Election
Tom Goldstein, SCOTUSBlog
May 18th, 2007

"As the presidential campaign season gets an unprecedented early start, it is not too early to start the hyperbole on the importance of the election for the future of the Court and, as a consequence, the future of American law.

The most important caveat to predictions like these is that no one actually knows; this is speculation. The Justices don't disclose their retirement plans, and those plans they do have are subject to change. What I say below is simply my sense personally, informed by a number of conversations that I think are reliable.

In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades – i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high"