Picking to Pack the Supreme Court
55, 61, 62, 66, 68, 78, 80 and 83.
No, these aren’t the latest Powerball numbers. They’re the ages of the nine justices of the Supreme Court as of Jan. 20, 2017. Assuming all of them survive this year, it’s likely that our next president could select three or more new members to the Court.
Those three highest numbers actually belong to four members of the Supreme Court: Justice Ruth Bader Ginsburg will be 83, both Anthony Kennedy and Antonin Scalia turn 80 this year, and right behind them is Stephen Breyer. There are two each from the “conservative” and “liberal” wings of the Court — if Kennedy, who was appointed by Ronald Reagan after Senate Democrats shamefully “borked” Robert Bork, can be deemed something other than an unreliable and incoherent swing vote.
And while it may seem logical for Ginsburg and Breyer to step down now while a Democrat president can still appoint their replacements, the feisty Ginsburg, who is battling pancreatic cancer, has consistently thumbed her nose at those fellow liberals who suggested it. Back then, Democrats still had the Senate; liberals now know that window has closed. Barack Obama can name anyone he wants, but it’s not likely the Republican Senate would roll over without a fight for a SCOTUS nominee, even though they mostly have done just that for lower courts of late. Moreover, the Senate has an unwritten rule that they won’t act on filling judicial vacancies during the waning months of a president’s term.
But the impact of a president can be felt long after he is gone based on the Supreme Court justices he selects. Both Scalia and Kennedy were Reagan appointees, and they are still on the court 27 years after he left office and almost 12 years after his death. Imagine, for example, what sort of impact a President Ted Cruz or President Marco Rubio could have with three or four Supreme Court appointees.
On the other hand, we could see the death of constitutionalism if Hillary Clinton or Bernie Sanders were allowed to remake the High Court with their own lifetime appointees. We get the sense that Donald Trump would also work in this direction, given that he thinks his ultra-liberal, pro-abortion sister (a federal judge) would make a “phenomenal” Supreme Court justice. He has no constitutional moorings, leaving his decisions essentially guided by the roulette wheel at one of his casinos.
One man who won’t soon don a black robe is Barack Obama. In a shameless suck-up to the man who will ultimately decide whether she is indicted for her reckless handling of state secrets (and the man whose coalition she must mobilize if she has any chance of becoming president), Clinton gushed this week that placing Obama on the Supreme Court is “a great idea … I love that.” Of course, this stunt was to remind voters that she is his socialist legacy heir apparent and that, if elected, her judicial nominees would mirror Obama’s lawless rule.
Of course, Obama’s spokesman Josh Earnest threw cold water on the prospect. “My guess,” said Earnest, “is that his aspirations for his post-presidency extend beyond a Supreme Court appointment.” Of course, as Mark Alexander has argued, Obama’s narcissistic drive will likely mean his “aspirations” will mean something more in line with secretary general of the UN.
This presidential election is a critical one for many reasons, but a key aspect is having the opportunity to make lifetime appointments throughout the federal judicial system and the Supreme Court in particular. In eight years, Obama has placed hundreds of left-wing activists in the nation’s appellate and district court system, many of whom replaced selections from the Reagan/Bush era. We will surely be stuck with his appointees for many years, which is all the more reason to keep Clinton from adding her touch to the bench.