Supreme Court & Judicial Appointments

The next president is likely appoint at least one, and perhaps as many as three, justices to the Supreme Court. But because of the current make-up of the court, a President McCain has an opportunity to reshape the court more dramatically than Obama during an eight-year term.

The Supreme Court currently is balanced between four liberals and four conservatives with moderate-conservative Justice Anthony M. Kennedy, 72, often serving as the tie-breaker.

At age 88, liberal Justice John Paul Stevens is the oldest on the court. The other liberals range in age between 69 and 75. The conservative wing is younger; the oldest of the conservatives, Antonin Scalia, is 72.

The Current Court*
	John Paul Stevens	Ruth Bader Ginsburg	David H. Souter	Stephen G. Breyer	Anthony M. Kennedy	Samuel A. Alito, Jr.	John G. Roberts, Jr.	Clarence Thomas	Antonin Scalia
Age	88	75	69	70	72	58	53	60	72
On Court since	Dec. 19, 1975	Aug. 10, 1993	Oct. 9, 1990	Aug. 3, 1994	Feb. 18, 1988	Jan. 31, 2006	Sept. 29, 2005	Oct. 23, 1991	Sept. 26, 1986
Appointed by	Ford	Clinton	G.H.W. Bush	Clinton	Reagan	G.W. Bush	G.W. Bush	G.H.W. Bush	Reagan

Chart: Wall Street Journal

Should any of the liberals retire, the Wall Street Journal notes, a President McCain could give the court its “first solid conservative majority since 1937.” Under that scenario, an Obama appointment would only  maintain the current balance.

From the Wall Street Journal:
What an Obama Supreme Court might look like.
What a McCain Supreme Court might look like.

Obama

Obama says the Constitution “not a static but rather a living document.”  As a result, he would appoint judges who  won’t “think, in 1954, of ’separate but equal’ in a very formalistic way,” but rather recognize that in practice segregation is “inherently unequal,” according to Danielle Gray, an Obama campaign aide and former Supreme Court law clerk.

That distinction proved central in a 2007 case in which the court rejected a female employee’s claim that she was paid less than men performing the same job. The court ruled that she had not filed her complaint within the law’s 180-day time limit.

Conservative Samuel Alito’s majority decision ruled that the time limit should run from her first unfair paycheck, although the woman did not discover the disparity until years later. Obama agreed with Justice Ruth Bader Ginsburg, who argued that Alito ignored “the realities of the workplace,” and that the clock should run from the last unfair paycheck.

McCain

McCain has promised to appoint “strict constructionist” judges “who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.” He denounces judges who “usurp the role of the people and their representatives and legislate from the bench.”

Those positions, which he spelled out in a speech in May, helped reassure wary conservatives and solidify his Republican base.

McCain had enraged conservatives in 2005, when he joined centrist Republicans and Democrats to end a stalemate over some of President Bush’s most conservative nominees. The compromise sacrificed several Bush nominations in exchange for confirmation of others.

Conservatives also oppose one of McCain’s biggest legislative achievements — the 2002 campaign finance law he co-sponsored with Democrat Russell Feingold — on the grounds that restricting political contributions is a violation of First Amendment free speech rights.

Sources:

New York Times
Wall Street Journal “John McCain: Looking to the Framers”
Wall Street Journal “Barack Obama: The Present Is Prologue”
Obama campaign
McCain campaign