With four Supreme Court Justices set to turn 80 during the course of the president’s next term, battle lines are already being drawn to prevent the court from becoming another liberal bastian as it was during the reign of Chief Justice Earl Warren.
Newsmax is reporting that conservatives are preparing to do battle with President Barack Obama who will almost certainly name a third justice to the Supreme Court during his next term.
Four of the Court’s nine justices are in their 70’s – with the ultra-liberal Ruth Bader Ginsburg the eldest at 79. Another liberal Stephen Breyer, is 74. Two conservative justices, Antonin Scalia and Anthony Kennedy are both 76 and will turn 80 by the end of Obama’s second term.
A Ginsburg retirement would not cause an uproar because replacing her with another liberal would simply maintain the current balance of the Court. However, should one of the two conservative justices choose to retire during Obama’s term, then it would be “armaggedon.”
The good news is that conservatives are already preparing for such a scenario.
“The conservative base, now highly mobilized over Supreme Court nominations, will no longer accept the White House’s word on a nominee,” said Ed Whelan, president of the Ethics and Public Policy Center, in a National Review article. “It will insist on a high-quality pick, and it will inflict severe political costs on a White House that makes a suspect pick.”
He fully expects that the president will nominate “diverse judicial liberals” because Obama has openly praised Chief Justice Earl Warren whose court brought liberal decisions such as Engle v. Vitale (1962), a case which led to the outlawing of mandatory school prayer.
Even though the Democrats won the White House and a few more seats in the Senate last week, the president is not expected to have an easy go of it should he choose to create another liberal court.
“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,” Whelan says.
“Further, 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.”
Absent a filibuster, as it stands today, the Democratic majority in the Senate virtually guarantees that an Obama nominee can be confirmed, “but Obama and Senate Democrats should be forced to pay a high political cost for a bad nominee,” Whelan says.
Of course, there’s always the 2014 mid-term elections which could give conservatives another chance to win control of the Senate, virtually guaranteeing that the Court maintains conservative judicial principles for years to come.
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