Fordham Law

Obama's change will find its way to U.S. courthouses

Abner Greene in The Star-Ledger, November 09, 2008

Media Source

Star-Ledger Staff
Already historic, Barack Obama's election could profoundly affect the nation in another way: its judiciary.

Experts say President-elect Obama could appoint as many as three Supreme Court justices in the next few years, as many as any president in two decades. And with a newly solid Democratic majority in the Senate ready to confirm his nominations, Obama could also name scores of new judges to the lower courts, stemming a conservative wave that has reshaped the American judiciary in the past decade.

Whether that leads to a drastic shift in law on such hot-button issues as abortion and affirmative action is unclear. Five of the nine current Supreme Court justices are 70 or older, but three have repeatedly emerged as the most likely to leave.

The senior member, Justice John Paul Stevens, is 88 and has been on the court since 1975. Ruth Bader Ginsburg, 75, has battled health problems. Another justice, David Souter, is 69 and is believed to want to retire to his native New Hampshire. None has made his or her plans public and isn't likely to do so until the current court term ends next spring.

The three are dependable members of the court's liberal wing, and justices, if they can help it, tend to leave only when they know they will be replaced by a like-minded judge. So filling their seats might not drastically tilt a court often locked in 5-4 ideological battles, experts say.

"If he replaces any of the liberal justices, we assume we'll have a status quo," said Abner Greene, a Fordham Law School professor and author of the book "Understanding the 2000 Election."

Status quo means a nine-member panel whose decisions have often come down to one vote, with Justice Anthony Kennedy usually proving to be the swing. That breakdown could remain intact for years: President Bush's two appointees, conservatives Chief Justice John Roberts and Justice Samuel Alito, are in their 50s.

"It will remain the Kennedy court; he's the decider," said Frank Askin, a Rutgers Law School professor.

What is more likely, the analysts say, is that Obama could tap a nominee who is more unabashedly liberal than the justice he or she replaces. That might pull the liberal wing of the court farther to the left, and lead to more pronounced division in their opinions and dissents, or someone who proves to be a regular foil to Justice Antonin Scalia or one of the other conservatives.

If Ginsburg leaves the court, expect Obama to look for a female nominee, experts say. If anyone else goes, the new president could look to add the court's first Hispanic justice.

Obama is a former part-time constitutional law professor at the University of Chicago, bringing personal perspective to nominations that some of his predecessors lacked.

Because of that, Askin said, he expects the new administration to press the court to address civil liberties issues of the past decade, such as the constitutionality of electronic surveillance by the government.

"I think he has a deep commitment to constitutional rights," said Askin, who directs the Constitutional Litigation Clinic at Rutgers.

Others said the court could face a new wave of legal questions related to a defining issue of the campaign: the credit crisis, losses, property claims and who is to blame.

And as important as filling Supreme Court vacancies could be the scores of judgeships Obama can fill at the district and circuit levels, where citizens and corporations first bring their cases and appeals. Bush filled more than 300 of those seats during his two terms, and by most accounts those appointments stocked the lower courts with conservative-minded judges.

"It's extremely important," said Barry Friedman, a law professor at New York University. "The vast majority of cases get decided in the lower courts. ... Who's in the lower courts shapes the agenda that comes up to the Supreme Court."

John McGinnis, a professor at Northwestern University Law School, said he believes the Supreme Court appointees will ultimately have more impact on society because the lower court judges tend to follow the lead of the highest court.

McGinnis said medical advances and longer life spans mean the next justice appointed to the bench could be influencing American law for generations to come.

"You appoint someone who is around 50 today, in my view, you're appointing a justice for about 50 years," he said.