Conservatives are readying for battle as President Barack Obama stands poised to name a third justice to the Supreme Court and reshape it more than any president in recent history.
With four of the nine justices in their 70s – and a Democratic Senate that was strengthened with Tuesday’s elections – Obama can choose to maintain the delicate balance on the court – or tip it even further in the liberal direction.
The latter has conservatives most worried, especially with the court possibly hearing cases on campaign finance reform or same-sex marriage in future terms.
Curt Levey, president of the Committee for Justice, said conservatives are determined to prevent Obama from "giving us another Warren Court," The Wall Street Journal reports.
A Republican appointed by President Dwight Eisenhower, the Warren Court returned such liberal decisions as the Brown v. Board of Education ruling in 1954, which abolished school segregation.
Levey has circulated emails with the headline "Obama Court Nightmares," illustrated with a 1957 Time magazine cover featuring Warren, The Journal reports.
In his 2008 campaign, Obama cited Warren, a California governor and attorney general who had never served on the bench, as exemplifying the experience he thought belonged on the Supreme Court, according to The Journal.
Ed Whelan, president of the Ethics and Public Policy Center, said that the Harriet Miers debacle under President George W. Bush in 2005 galvanized Republicans on the issue.
“The conservative base, now highly mobilized over Supreme Court nominations, will no longer accept the White House’s word on a nominee,” Whelan said in a National Review article published before the election. “It will insist on a high-quality pick, and it will inflict severe political costs on a White House that makes a suspect pick.”
Regardless, “President Obama will nominate diverse judicial liberals,” Whelan said.
And the president, a graduate of the Harvard Law School who taught constitutional law, did that in his first term, with the appointments of Justices Sonia Sotomayor and Elena Kagan.
They join four justices who are in their 70s. Two – Ruth Bader Ginsburg, the eldest, at 79, and Stephen Breyer, 74 – are liberals. The remaining two – Antonin Scalia and Anthony Kennedy, both 76 – are conservatives.
Among possible Obama appointees, according to The Journal, is Judge Paul Watford, 45, who was confirmed earlier this year to the Ninth U.S. Circuit Court of Appeals in San Francisco.
A former federal prosecutor and corporate lawyer, Watford clerked both for Justice Ginsburg and Ninth Circuit Judge Alex Kozinski, appointed by Ronald Reagan, The Journal reports.
Ian Millhiser of the left-leaning Center for American Progress told The Journal that if Obama wanted "someone young with U.S. Court of Appeals experience who has the traditional indicia of being a brilliant legal mind, the name that stands out is Paul Watford."
If appointed, Watford would become the third African American to sit on the Supreme Court, after Thurgood Marshall and Justice Clarence Thomas.
One other name mentioned by The Journal, also from the Ninth Circuit, is Judge Mary Murguia. Obama elevated her from the federal district court in Arizona.
The daughter of Mexican immigrants, Murguia attended the University of Kansas and served as a federal prosecutor in Arizona under then-U.S. Attorney Janet Napolitano, now Homeland Security Secretary.
If confirmed, she would be the second Hispanic woman on the high court, after Justice Sotomayor.
The biggest change to the Supreme Court, however, would come if either Scalia or Kennedy retired.
“It's replacing Scalia or Kennedy, then we're really talking Armageddon," Levey told The Journal.
But since the GOP lost both the White House and the Senate on Tuesday, Obama should have “a lot of deference” should he decide to replace – say – Justice Ginsburg with another liberal or like-minded nominee, Levey said.
Whelan, of the National Review, disagrees.
“This view is badly misguided,” he said in a Thursday post. “The Sotomayor and Kagan confirmation battles—both of which involved replacing a liberal with a liberal and both of which, of course, came after Republicans lost the 2008 presidential election and lots of Senate seats—show that Republican senators have moved decisively away from the deference-to-the-president model that Democratic senators long ago abandoned.
“I don’t see why anyone would think that Republican senators would or should unilaterally return to that model.
“Further,” he added, “conservatives shouldn’t set a lower bar for a nominee who is replacing a liberal justice than for one who is replacing a conservative. Instead, we should make the case that conservative judicial principles are the right judicial principles and that anyone who doesn’t embrace those principles is unfit for the court.
“We need to work to build a court with a supermajority of sound justices, not to preserve the unsatisfactory status quo.
“To be sure, absent a filibuster, the sizable Democratic majority in the next Senate virtually guarantees that an Obama nominee will be confirmed,” Whelan said. “But conservatives should fight the fight on grounds of judicial philosophy, and Obama and Senate Democrats should be forced to pay a high political cost for a bad nominee.”
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