Aging Justices Give New Life to High Court as Campaign Issue

The next U.S. president may make as much of a mark on the U.S. Supreme Court as on the economic issues that are dominating the campaign.

Four of the court’s nine justices will be at least 74 years old on Inauguration Day in January -- the first time that will have occurred in 28 years. Their ages suggest that one or more may be off the bench within the next four years, letting either Barack Obama or Mitt Romney appoint a successor and leave a decades-long legal imprint.

A new justice would join a court now split almost evenly on questions involving race, religion, gun rights, campaign finance and federal power. Obama last week put new emphasis on the court as part of his bid to win over women voters, pointing to his appointment of two female justices during his term in office.

“The next president could tip the balance of the court in a way that turns back the clock for women and families for decades to come,” the president told a mostly female audience on Aug. 8 in Denver. “The choice between going backward and moving forward has never been so clear.”

The impact of a vacancy will depend as much on who leaves the court as who nominates the replacement. The departure of a Republican-appointed justice, such as Antonin Scalia or Anthony Kennedy, both 76, would give a re-elected Obama more power to shift the court’s balance than the retirement of a Democratic appointee, such as 79-year-old Ruth Bader Ginsburg or Stephen Breyer, who turns 74 today.

Gun Rights

Romney, a former Massachusetts governor, has suggested an Obama victory in November would mean a rollback of the constitutional gun rights the high court backed in 5-4 rulings in 2008 and 2010. The presumptive Republican presidential nominee told a National Rifle Association conference in April that Obama “would remake” the court in a second term.

“Our freedoms would be in the hands of an Obama court,” he said. “Not just for four years, but for the next 40.”

Even so, Romney hasn’t made the court a central issue in his bid for the White House, training his sights instead on the nation’s 8.3 percent unemployment rate.

The Obama campaign, by contrast, is using advertisements to highlight Romney’s opposition to Roe v. Wade, the landmark 1973 decision that guaranteed abortion rights nationwide. Two ads attacking Romney on the issue have aired more than 18,000 times, according to New York-based Kantar Media’s CMAG, which tracks advertising.

Abortion Split

The justices are sharply divided on abortion. In 2007, the court voted 5-4 to uphold a federal ban on a procedure opponents dubbed “partial-birth” abortion.

“The court right now is so very closely divided that I think it’s inevitable that whoever wins the presidency is going to have a major impact on the direction of the court,” said Caroline Fredrickson, president of the American Constitution Society, a network of progressive lawyers and law students.

The court underscored its own significance -- and the power of a single justice -- with its 5-4 decision in June to uphold Obama’s signature health-care law.

None of the justices has given any indication of contemplating imminent retirement. Ginsburg, a two-time cancer survivor, has said she wants to match the longevity of Justice Louis Brandeis, who was 82 when he stepped down in 1939. Should she retire at the same age, Ginsburg would create an opening for Obama in 2015 if he is re-elected.

Ginsburg Departure

Ginsburg may prefer to depart while Obama is in office. An advocate for women’s rights who hugs Obama each year at his State of the Union Address, Ginsburg was one of two justices to back the entirety of his health-care law in June.

Scalia, the court’s longest-serving member, anchors its conservative wing, opposing constitutional protections for abortion and gay sex while backing gun rights and corporate campaign spending.

Kennedy is the court’s most frequent swing vote, dictating the outcome in cases involving the death penalty, racial preferences and the environment. Breyer generally votes with the court’s liberal wing on those issues.

Obama’s list of potential nominees may include Merrick Garland, a federal appellate judge in Washington whom the president considered when he appointed Sonia Sotomayor in 2009 and Elena Kagan in 2010. At the same time, Obama might feel compelled to appoint a third woman should Ginsburg step down.

Prospective female candidates include Illinois Attorney General Lisa Madigan and California Attorney General Kamala Harris, according to Tom Goldstein, whose Scotusblog website tracks the court. The blog is sponsored by Bloomberg Law.

Romney’s List

For Romney, the list almost certainly would start with Paul Clement, who unsuccessfully argued the cases against the health- care law and in support of Arizona’s illegal-immigrant crackdown this year. Clement, a former Scalia law clerk, served as President George W. Bush’s top Supreme Court lawyer.

Clement “has to be number one” on Romney’s list, said Curt Levey, executive director of the Washington-based Committee for Justice, which generally aligns with Republicans on judicial appointments.

Other possibilities for Romney include federal appeals court judges Diane Sykes of Milwaukee and Neil Gorsuch of Denver; Michael McConnell, a former federal appellate judge who teaches at Stanford Law School in California; and former Assistant Attorney General Viet Dinh, Clement’s law partner and a News Corp. independent director overseeing the company’s cooperation with authorities investigating its phone-hacking scandal.

Health Vote Looms

The health-care case -- and the vote of Chief Justice John Roberts -- will hover over any Romney nomination. Roberts disappointed conservatives by joining the court’s four Democratic appointees to uphold the law. CBS News, citing unnamed people, reported that he switched sides during the court’s internal deliberations after originally voting to strike down the core of the law.

When Bush appointed him in 2005, Roberts had longstanding Republican connections, including a stint in President Ronald Reagan’s Justice Department. At the same time, he had served for only two years as a federal appeals court judge, a span that Levey now says might have been insufficient to gauge his judicial philosophy.

“Maybe we’ve gone too far with the stealth candidate,” Levey said. “I think you’re going to need something more.”

The second-guessing of the Roberts nomination will only exacerbate the partisan polarization that surrounds judicial nominations, says Christopher Eisgruber, the provost of Princeton University in New Jersey and the author of a book on the Supreme Court appointment process.

It will intensify “what is already a stunningly intense focus on the nominee’s ideology,” said Eisgruber, who was a law clerk for the now-retired Justice John Paul Stevens.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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