Obama vs. Romney on the Supreme Court

National Review Online | Published on October 11, 2012

By Edward Whelan

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The essay below is a blended version of two posts that appeared on National Review Online’s Bench Memos on October 11 and 12.

The topic of the Supreme Court has received very little attention in the presidential race. Neither Barack Obama nor Mitt Romney referred to it at all in his convention speech, nor did the matter come up in the first presidential debate. Evidently both candidates have concluded that they won’t win political points with the general public by talking about the Supreme Court. Perhaps each figures that his base is already energized on the issue, or that he can micro-target his message to that base, and perhaps each worries that he can’t deliver an effective narrative about the Court that resonates beyond his base.

Whatever the reasons for it, the silence certainly doesn’t correspond to the importance of the Supreme Court appointments that a re-elected President Obama or a newly elected President Romney may make in the next presidential term. Some general observations:

First: Control of the Supreme Court, perhaps for a generation, is very much up for grabs.

In general terms, the Court currently consists of four judicial liberals (Ginsburg, Breyer, Sotomayor, and Kagan), four judicial conservatives (Roberts, Scalia, Thomas, and Alito), and a ninth justice (Kennedy) who sometimes joins with the liberals and other times with the conservatives. (As I’ve explained before, I don’t think the term moderate, much less moderate conservative, captures Kennedy.)

The nine justices fall roughly into two age cohorts. Four justices are in the older cohort (ages 74 to 79): Ginsburg (born in 1933), Scalia (1936), Kennedy (1936), and Breyer (1938). Five justices are in the younger cohort (ages 52 to 64): Thomas (1948), Alito (1950), Sotomayor (1954), Roberts (1955), and Kagan (1960).

In other words, in the older cohort, there are two liberals, one conservative, and Kennedy, and in the younger cohort the conservatives have a three-to-two edge over the liberals.

It’s of course not a simple matter to accurately predict departures (voluntary or otherwise) from the Court. But there is a reasonable prospect that there will be one or two vacancies during the next presidential term, and it’s reasonable to expect that any such vacancies would come from the older age cohort.

As a hypothetical exercise, let’s assume that Ginsburg and Kennedy leave the Court during the next presidential term. If Obama is president and replaces them with liberals who are in their 50s, he will have established a liberal majority on the Court and he will also have created a four-to-three edge for liberals among the younger justices. By contrast, if a President Romney succeeds in replacing Ginsburg and Kennedy with relatively young conservatives, there will be a six-justice conservative majority on the Court, including a whopping five-to-two advantage in the younger age cohort, an advantage that might well ensure two decades of conservative dominance on the Court.

Second: The president will have the upper hand in getting his Supreme Court nominees confirmed.

It now seems likely that neither a re-elected President Obama nor a newly elected President Romney would enjoy a large same-party majority in the Senate. There is no plausible prospect in which either would have a filibuster-proof supermajority of 60 senators. Indeed, it’s possible that each would face a Senate that, by a narrow margin, is controlled by the opposite party.

Nonetheless, there is ample reason to believe that either president, without compromising on judicial philosophy, could get his Supreme Court nominees confirmed.

One big advantage that the president has is the ability to define the battle by the nominee he selects. If the Senate majority is tight or in the hands of the other party, a president may well pass over candidates whose records have red flags that might trigger objections. But, both on the Left and on the Right, there will be plenty of candidates who, by judicial philosophy, are similar to the passed-over candidates.

A nominee who has excellent objective credentials and who is personally appealing is a safe bet to win confirmation in a Senate with a majority, no matter how narrow, of the same party as the president. Even in a Senate narrowly controlled by the opposite party, some opposite-party senators will likely find it unattractive to oppose such a nominee. Indeed, in an odd way, the fact that a nominee might be defeated will make it more difficult for opposite-party senators from moderate states to oppose the nominee—because they will be more likely to arouse in-state criticism for doing so. (Senators usually find it easier to explain away why they voted for a nominee than why they voted against.)

Don’t be misled by the successful filibuster votes on federal appellate nominees, first by Senate Democrats on ten nominees in George W. Bush’s first term (three of whom were confirmed in Bush’s second term), then by Senate Republicans on three Obama picks. The public pays very little attention to lower-court nominations, and senators therefore don’t risk much in filibustering those nominations. But the public will expect an up-or-down vote on a Supreme Court nominee and—unless a strong case has been made against the nominee—is much more likely to punish senators who block such a vote.

Third: President Romney will nominate strong judicial conservatives, and President Obama will nominate diverse judicial liberals.

I’m often asked whether I trust Mitt Romney to nominate good conservative justices. My standard response is that I don’t trust any Republican president to do so. What matters instead is that Romney will have the clear incentive to make strong picks.

Although it is dispiriting to contemplate the fact that every Republican president back to Eisenhower has made at least one serious error, the happy reality is that the Harriet Miers episode marks a fundamental change: The conservative base, now highly mobilized over Supreme Court nominations, will no longer accept the White House’s word on a nominee. It will insist on a high-quality pick, and it will inflict severe political costs on a White House that makes a suspect pick. This is the Harriet Miers lesson, a lesson that the Romney White House should clearly understand.

Fortunately for Romney, he will have a deep bench of outstanding, and relatively young, candidates to choose from.

As importantly, the political triumph of judicial conservatism means that the Romney White House should be confident not only that it will succeed in getting a strong nominee confirmed but also that it will win political capital in the process.

The Democratic base will constrain Obama (or perhaps reinforce his own instincts), but in a way that elevates diversity at the expense of quality. Leftist critics of the Sotomayor nomination recognized this dynamic at work.

Another telling illustration comes from Tom Goldstein’s reflection on Obama’s next nominee. SCOTUSblog’s Goldstein is a savvy observer and very well-connected with folks in the Obama administration, so it’s particularly striking that, even in the aftermath of Obama’s appointments of Sotomayor and Kagan, Goldstein thinks it “inconceivable” that Obama would nominate a man to replace Justice Ginsburg. It’s even more revealing that the “ideal nominee” that he comes up with for Obama, California attorney general Kamala Harris, has zero judicial experience and offers no evidence of being an intellectual heavyweight. For much of Obama’s base, the fact that she would be the first African-American female on the Court more than offsets those deficiencies.

To sum up: The future of the Supreme Court is at stake in this presidential election. If Mitt Romney is elected, he will very likely succeed in appointing strong conservative justices and (depending on which vacancies arise) in dramatically improving the Court. But if Barack Obama is re-elected, he will entrench liberal seats for another generation and (again, depending on the vacancies) may well swing the Court sharply to the Left.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s Bench Memos blog.