With four justices 74 or older, actuarial tables alone suggest Obama will have another vacancy or two to fill before he leaves the White House in January, 2017. The oldest of the court’s nine members, 79-year-old Ruth Bader Ginsburg, has indicated she might retire in the next few years.
Names of possible successors are already circulating in Democratic circles. California Attorney General Kamala Harris, U.S. Senator Amy Klobuchar of Minnesota, Assistant U.S. Attorney General Virginia Seitz and Illinois Attorney General Lisa Madigan are high on the lists. Obama would almost certainly choose a woman to succeed Ginsburg, ensuring the court continues to have three female justices, said Amy Howe, a lawyer at Goldstein & Russell PC.
“If Ginsburg retired, I think it’d be hard to replace her with a white guy,” said Howe, whose Washington firm runs Scotusblog, a website that tracks the court and is sponsored by Bloomberg Law. “I can’t imagine he’d want to let the court go back down to two women.”
A new justice would join a court now split almost evenly on questions of abortion, race, religion, gun rights and campaign finance. Obama’s first two appointees, Sonia Sotomayor and Elena Kagan, have joined Ginsburg in voting to uphold the president’s health-care law and calling for reconsideration of the 2010 ruling allowing unlimited corporate election spending.
Another Obama appointment would solidify that wing of the court, even if the balance doesn’t tip. Because a new justice would potentially serve for decades, Obama’s appointees would be in position to shape American law long after the onetime constitutional law professor has left the White House. Harris is 48, Klobuchar 52, Seitz 56, and Madigan 46.
“You could see effectively a Ginsburg clone at least 30 years younger to really anchor the liberal wing of the court,” said Carrie Severino, chief counsel for the Judicial Crisis Network, a Washington-based group that opposed the Sotomayor and Kagan nominations.
The impact would be even greater should a Republican- appointed justice, such as Antonin Scalia or Anthony Kennedy, both 76, leave the court. That’s unlikely barring a major health problem, Howe said.
Another candidate to step down before the end of Obama’s new term is 74-year-old Justice Stephen Breyer, who, like Ginsburg, was appointed by Democratic President Bill Clinton. Neither Breyer, Scalia nor Kennedy has given any public indication of plans to retire.
The candidates to replace them also include a handful of federal appeals court judges, among them Obama appointees Mary Murguia and Jacqueline Nguyen and Clinton appointees Sidney Thomas and Merrick Garland. Thomas and Garland were on Obama’s short list when he selected Kagan in 2010, with Garland getting support from Republican senators.
The possibilities would expand if no vacancy occurred for two or three years. By then, Obama may have appointed a dozen or more additional federal appellate judges, giving them stronger credentials to be elevated to the nation’s highest court.
That field includes two people he has nominated to the federal appeals court in Washington, Deputy U.S. Solicitor General Sri Srinivasan and former New York Solicitor General Caitlin Halligan.
The Supreme Court at one point loomed as a significant campaign issue. That possibility diminished after the court upheld the president’s health-care law in June, with Republican- appointed Chief Justice John Roberts casting the pivotal vote.
Obama made the court a secondary issue in his re-election bid, using it primarily to help make his case to women. In a speech in August, he told a mostly female audience that Republican Mitt Romney “could tip the balance of the court in a way that turns back the clock for women and families.”
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