Anthony Kennedy, Antonin Scalia, Barack Obama, Elena Kagan, Federal Judges, Law Professors, Neal Katyal, Old People, Politics, R. Ted Cruz, SCOTUS, SCOTUS Potential, Sonia Sotomayor, Stephen Breyer, Supreme Court

What Will a Second Obama Term Mean for the Supreme Court?

‘I’m coming for you, SCOTUS.’

Legal elites fared well on election night. For example, Harvard law professor Elizabeth Warren is now Senatrix-elect Elizabeth Warren, after expertly landing Langdell Hall on top of Scott Brown (“I’ll get you, my pretty, and your little pickup truck too!”). As a Divacrat — I support strong, strident, brilliant (sorry Sarah Palin) women, regardless of their political party — I’m already fantasizing about Clinton/Warren in 2016.

Joining Warren on the Senate floor will be another great legal mind who spent some time in Cambridge, Harvard law grad and former SCOTUS clerk Ted Cruz. The Morgan Lewis partner is one of several current or former Biglaw attorneys who won office on Tuesday. (For more, see Am Law Daily.)

The biggest winner of the evening, of course, is also a legal elite: President Barack Obama. He’s a former law professor, like Warren; an HLS grad, like Cruz; and the first African-American president of the Harvard Law Review. Things don’t get much more elite than that.

And in the legal world, things don’t get much more elite than the United States Supreme Court. This brings us to today’s question: What will a second Obama term mean for the Supreme Court?

Not long after the networks called the election for President Obama, my mind turned to the fate of the Supreme Court:

Justice Ginsburg isn’t the only member of the Court who might be “in play” during a second Obama term. It just so happens that, at 79, she’s the oldest. (Of course, RBG has stated that she doesn’t want to retire until she matches the tenure of Justice Brandeis; more on that below.)

Over at Thomson Reuters News & Insight, longtime Court correspondent Joan Biskupic, one of the most astute observers of SCOTUS, shares some thoughts on what to expect from the president in terms of high court appointments:

With [Obama’s] re-election, the retirement of one or more justices in the next four years could preserve the present ideological balance or, more significantly, move the bench to the left. The court’s nine justices are selected for life and their appointments can rank among a president’s most enduring legacies.

Ain’t that the truth. People can and will argue over George W. Bush’s place in history, but no one can deny the important effect he had on the Supreme Court, through appointing Chief Justice John Roberts and Justice Samuel Alito.

Four [of the nine justices] are in their 70s. Two — Ruth Bader Ginsburg, 79, and Stephen Breyer, 74 — are liberals. Two — Antonin Scalia and Anthony Kennedy, both 76 — are conservatives. The biggest shake-up would come if either of the last two stepped down.

Ain’t that the truth too. If either Justice Scalia or Justice Kennedy were to leave the Court during Obama’s presidency, things could get ugly. Even though the Democrats retained control of the Senate, they don’t have a filibuster-proof majority. One could imagine a Republican filibuster if Obama attempts to replace Scalia or Kennedy with a super-liberal nominee.

Biskupic reviews the recent history of SCOTUS retirements:

The last retirement was in 2010 when Justice John Paul Stevens, then aged 90, stepped down. For decades, speculation about his retirement had been the stuff of election-year news stories.

Before him, Justice David Souter left at age 69 in 2009. Chief Justice William Rehnquist died in office, at age 80, in 2005. Justice Sandra Day O’Connor retired in 2006 at 75, leaving earlier than expected to care for her husband who suffered from Alzheimer’s disease.

I had forgotten how young, in SCOTUS terms, Justice Souter was when he retired. Of course, DHS made no secret of his dislike for D.C. (although, as Jeffrey Toobin reports in The Oath (affiliate link), “Souter liked Washington somewhat more in his later years on the Court, in part because he had his first serious girlfriend in years”). We haven’t heard too much from Justice Souter since his retirement.

Meanwhile, based on how often they keeping popping up with public pronouncements, one gets the sense that Justice Stevens and Justice O’Connor wish they were still on the Court. My suspicion is that Justice Kennedy and Justice Scalia have learned a lesson from this: don’t step down from the Supreme Court until you absolutely must. I would expect them to try their best to wait out Obama’s second term in the hopes that a Republican will prevail in the 2016 presidential election.

This takes us back to Justice Ginsburg. From Biskupic:

Ginsburg, who has survived colorectal and pancreatic cancer, said in an August interview with Reuters that her health was good. She undergoes regular check-ups and works with a personal trainer.

(Fun tidbit from the Toobin book: she can do 25 push-ups.)

Appointed in 1993 by President Bill Clinton, she has vowed to remain on the bench at least three more years, to match the record of Justice Louis Brandeis, one of her judicial heroes, who retired at age 82 in 1939, after nearly 23 years. But she has added, “You have to take it year by year.”

If she meets her goal of equaling Justice Brandeis’s tenure, she will step down in 2015, the third year of Obama’s second term. That’s what Tom Goldstein of SCOTUSblog has predicted, and when it comes to predictions about the Court, his track record is tough to beat.

So that takes us to the next question: looking at the four oldest justices (RBG, AS, AMK, and SGB), who are the possibilities to replace them?

With respect to Justice Ginsburg, Goldstein conducted a detailed analysis back in February and reached this conclusion:

[I]n the lists of names, only one truly stands out as checking every box: Kamala Harris. She is the recently elected (2010) Attorney General of California. Previously, she was twice elected as the District Attorney for San Francisco (2004-2010); the chief of the unit heading civil code matters in the San Francisco City Attorney’s Office (2000-2004); the head of the career-criminal unit in the San Francisco D.A.’s Office (1998-2000); and Deputy District Attorney for Alameda County (1990-1998). Her mother (a breast cancer specialist) is from India and raised her as a single mother; her father (an economics professor at Stanford) is Jamaican-American. She graduated from Howard University as an undergraduate and went to U.C. Hastings for law school. Coincidentally, Harris is profiled in yesterday’s New York Times.

But then he walked the Harris prediction back a bit, noting that she may pass for political reasons (related to timing and her possible interest in running for the California governorship). To read about other possibilities, see Goldstein’s full post.

Still, Harris remains on the radar. Another expert Court watcher, Mike Sacks of the Huffington Post, views Harris as a strong contender:

As a predictive matter, I like these picks. Neal Katyal is young and brilliant, he’d be the first Asian-American on the Court, and he’d be a nice choice to replace Breyer as a biographical matter, since Katyal clerked for him (just as Chief Justice Roberts replaced Chief Justice Rehnquist, for whom Roberts once clerked).

As for putting Judge Merrick Garland (D.C. Cir.) on the high court to replace either Justice Scalia or Justice Kennedy, that makes sense too, as a matter of pure politics. As noted above, if Obama tries to replace AS or AMK with an outspoken liberal — think of someone like Pam Karlan, or Sherwin Lin Goodwin Liu — there will be blood. Judge Garland, in contrast, is a moderate lefty.

Even Ed Whelan, the prominent conservative legal analyst and former Scalia clerk, concedes that Garland would be an acceptable nominee:

Judge Garland has earned the respect of folks across the political spectrum for his judicial craftsmanship in his [15] years on the D.C. Circuit. Unlike Kagan, he may well be the best that conservatives could reasonably hope for from a Democratic president. While he’s certainly no judicial conservative, he would seem to represent what I described in this Washington Post piece last year as the “once-dominant species of liberal proponents of judicial restraint,” and his nomination might well “make great strides toward ending the judicial wars.”

Another factor that might weigh in Garland’s favor: age. Judge Garland is 59, about to turn 60 (on November 13; happy early birthday, Judge Garland!). Normally being 60 or above would count against a nominee. But let’s look at this from President Obama’s point of view.

If you’re a Democratic president without a filibuster-proof majority, and you’re trying to replace a conservative stalwart like Scalia or a key swing vote like Kennedy, the Senate Republicans aren’t going to let you get away with someone who is super-young and uber-liberal. They let you appoint Sonia Sotomayor, but she wasn’t super-young, and Elena Kagan, but she wasn’t uber-liberal. (Sotomayor and Kagan were 55 and 50, respectively, at the time of their confirmations to SCOTUS.)

And remember: both replaced liberal justices. Justice Sotomayor replaced Justice Souter, and Justice Kagan replaced Justice Stevens. Republican Senators will cut President Obama much less slack when it comes to replacing a staunch conservative like Justice Scalia or a swing voter like Justice Kennedy. A moderate lefty over the age of 60 — in other words, a Judge Garland — may be the best Obama can do.

Let’s also recall that despite Obama’s legal training and time as a con law professor (or “lecturer” if you prefer), the president has not shown much enthusiasm for spending political capital on confirming controversial left-wing rock stars to the federal bench. That might change in a second term, when he no longer has to worry about facing the voters again. But based on his record to date, it would not be unfair to say, “Obamacare about the courts? Not so much.”

Analysis: Obama may now seek to make deeper mark on U.S. high court [Thomson Reuters News & Insight]
Election Night Produces Mixed Results for Am Law Lawyers [Am Law Daily]
The Court in a second Obama term [SCOTUSblog]

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