The Activism to Come

National Review | Published on December 3, 2012

By Edward Whelan

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Presented the gift of two Supreme Court seats to fill in his first 15 months in office, Barack Obama appointed liberals Sonia Sotomayor and Elena Kagan. Given their relative youth–Sotomayor was 55 when appointed, and Kagan only 50–Obama likely cemented their seats on the left for the next two or three decades.

In his second term, President Obama could, depending on which vacancies arise, push the Court further leftward and engender a new era of aggressive liberal judicial activism. At the very least, he is likely to entrench another seat on the left.

As a backdrop for assessing the damage that Obama might inflict, let’s consider the current state of the Court along two dimensions: ideology and age.

In rough ideological terms, the Court currently consists of four judicial conservatives (John Roberts, the chief justice–in my judgment, the Obamacare ruling provides no basis for reclassifying his general position on the ideological spectrum–along with Antonin Scalia, Clarence Thomas, and Samuel Alito) and four liberals (Ruth Bader Ginsburg, Stephen Breyer, Sotomayor, and Kagan). Then there’s the swing justice, Anthony Kennedy, who has swung with the liberals in some huge cases and with the conservatives in others. For example, Kennedy provided the critical fifth vote in 1992 to retain Roe v. Wade and in 2003 to invent a constitutional right to homosexual activity, yet he also joined (and presumably authored) the majority opinion in Bush v. Gore and wrote the Citizens United ruling against campaign-finance restrictions.

As for age, the nine justices can be grouped into two cohorts. In the older cohort are Ginsburg (79), Scalia (76), Kennedy (76), and Breyer (74)–two liberals, a conservative, and Kennedy. In the younger cohort, the conservatives–Thomas (64), Alito (62), and Roberts (57)–currently have a three-to-two edge over the liberals–Sotomayor, now 58, and Kagan, the youngster at 52. (It’s striking that Thomas, who has been on the Court for more than two decades, is only two years older than Alito.)

Combining these dimensions, we see that if Obama is able, say, to replace both Ginsburg and either Scalia or Kennedy with liberals in their 50s, he will establish a liberal majority on the so-called Roberts Court and create a four-to-three edge for liberals among the younger justices. If he is somehow able to replace Ginsburg, Scalia, and Kennedy with young liberals, he will likely ensure two or three decades of liberal dominance of the Court.

Which departures from the Court might occur over the next four years? In the realm of involuntary departures, it is hazardous and unpleasant to anticipate who might be struck by death or disabling illness, though as a statistical matter, any such departures would of course more likely come from justices in the older age cohort.

As for retirements in the ordinary course: Ginsburg has repeatedly stated her goal of at least equaling the nearly 23-year tenure of Justice Louis Brandeis (a favorite predecessor of Ginsburg’s). To do that, she would need to remain on the Court until at least April 2016 (and she’d surely aim to stay through the June completion of any Court term she starts). The prospect that Ginsburg might defer her retirement until the year of the next presidential election will fill progressives with dread.

Back in 2011, Harvard law professor Randall Kennedy called Ginsburg and Breyer irresponsible for not enabling Obama to replace them in his first term. Already some voices are suggesting that Ginsburg should instead stay on the Court until she matches the age (82 years and three months) at which Brandeis retired–which she would do in June 2015. Look for the pressure on Ginsburg to step down no later than then to intensify sharply, and look for Ginsburg to give in to it.

None of the other justices in the older cohort has given any signal of intending to retire. Scalia has stated the obvious proposition that he “would not like to be replaced by someone who immediately sets about undoing everything that [he has] tried to do.” He, Kennedy, and Breyer all appear to be in good health, and, absent a debilitating illness, it is difficult to see why any of them would have an incentive to leave the bench.

So the most likely scenario during Obama’s second term is that the only vacancy he will have to fill is Ginsburg’s seat. But conservatives shouldn’t take much solace from this forecast. If Obama succeeds in replacing Ginsburg, he will lock up her seat on the left for another generation. Plus, there is still a substantial chance that the less favorable scenarios could arise.

The parlor game of identifying Supreme Court candidates is already under way, and the roster of names being flung about is a resounding testament to how thin the Democratic bench is and to how much the Left elevates considerations of diversity over those of quality. For starters, it’s remarkable that, even after Obama’s appointments of Sotomayor and Kagan, savvy folks such as SCOTUSblog’s Tom Goldstein take it as a given that Obama’s replacement of Ginsburg would have to be another woman. It’s even more striking that the “ideal nominee” that Goldstein comes up with (and a name that others are now echoing) is California attorney general Kamala Harris, who has zero judicial experience and offers no evidence of being an intellectual heavyweight. Goldstein may well be right to perceive that what matters most to progressives is that Harris is one of them (quite far left, in fact) and that she would be the first black woman on the Court.

One big question is whether Obama, now that he no longer is constrained by the desire to win reelection, will seek to nominate the “liberal lions” that progressives have been clamoring for.

If so, Seventh Circuit judge Diane Wood, who was a runner-up to both Sotomayor and Kagan, might well be a short-lister again if a vacancy arises soon. But she’s already 62, and her aggressive record on an array of culture-war issues might well lead the White House to pass over her again. Stanford law professor Pam Karlan, 53, would excite the Left but likely alienate everyone else. The names of some Hispanic women are also being floated, but, under the unwritten rules of the diversity game, there is no way that Obama will nominate a second Hispanic before he nominates his first African American.

My own judgment is that Obama might instead replace Ginsburg with a man, especially if he were achieving another diversity first, such as the first Asian nominee. State Department legal adviser and former Yale Law School dean Harold Koh, who turns 58 soon, has long been a favorite of the Left (even if some now regard him as a war criminal for defending drone strikes), but his fervent support for progressive transnationalism would make his nomination intensely controversial. Plus, in the course of fighting internal administration battles, he has made some influential enemies.

And then there’s Goodwin Liu, now 42, the former Berkeley law professor whose Ninth Circuit nomination was blocked last year by a Senate filibuster, with one Democrat joining Senate Republicans. Now that he has spent an uneventful year on the California supreme court, Liu’s supporters are trying to rehabilitate him. But while Liu’s boundless ambition will lead him to lie low for a few years, nothing can erase the aggressive left-wing ideology that he manifested in his previous writings and speeches, his apparent efforts to conceal many of the most incendiary of them from the Senate, and his wildly implausible confirmation testimony. No nominee should arouse more determined opposition than Liu.

Unless the composition of the Senate changes dramatically in two years, Senate Republicans will have little prospect of defeating an Obama nominee to the Supreme Court in an up-or-down vote. That fact shouldn’t deter Republicans from fighting the nominee vigorously on grounds of judicial philosophy, just as they effectively ma
de the case against Sotomayor and Kagan (even winning one Democratic vote against Kagan). And, depending on how aggressive Obama gets and on whom he is replacing, we may well see a high-stakes filibuster battle.

Mr. Whelan, a regular contributor to National Review Online’s Bench Memos blog, is president of the Ethics and Public Policy Center.

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