Capitol Idea: Obama’s Most ‘Supreme’ Influence Could Come In a Second Term

Appointing a new justice to sit on the Supreme Court is one of the most profound, and long-lasting, duties any president can exercise. Of course, he can carry out this particular responsibility only when a vacancy opens up, which can occur at such irregular intervals that they seem to happen at random.

George W. Bush got chances to nominate two justices, including a new chief justice — both of which came only in his second term. Bush’s father also had occasion to name two new justices, but his came during just the single four-year term he had in the White House.

Circumstances allowed Ronald Reagan to name three to the Supreme Court in eight years, which represented the ability to influence a third of the overall composition of the high court. Poor Jimmy Carter had no such luck, and never had a turn to nominate even a single Supreme Court appointee. Such quirks of presidential fate make it that much more extraordinary for Barack Obama to have fortuity to have named his second nominee in just his second year in office.

This rapid-fire track record is something Obama shares with the last Democrat to occupy the Oval Office. Bill Clinton, too, named a new Supreme Court justice in each of his first two years in office: Ruth Bader Ginsburg, and Stephen Breyer.

It remains to be seen, though, whether Obama continues to follow Clinton’s pattern, or not. Although he was quick out of the gate, history never gave Clinton another crack at the Supreme Court.

Will Elena Kagan, too, be Obama’s second and last nominee? Or does his future hold the promise of further chances to name a justice? Only time will tell, of course, but the question is worth consideration because Obama’s high court picks thus far parallel Clinton’s in another important way.

Like Clinton’s selections of Ginsburg and Breyer, Obama nominees Sonia Sotomayor and (presumably) Kagan replace moderate-to-liberal justices that came before. None of the four succeeded, or would succeed, conservative jurists.

As we noted earlier, the timing of Supreme Court vacancies can be a funny, often-unpredictable thing. But what do we learn if we apply a little history and a few back-of-the-envelope calculations to an exercise in crystal ball gazing?

If we do, we could predict Obama quite probably may have at least one more chance at a court nomination in the short term — and could have an opportunity to make even more sweeping change if he wins re-election in 2012.

In the short term, we see Clinton nominee Ginsburg probably retiring in the next two years because of her cancer. If circumstances allow, justices often prefer to retire with a like-minded president in office so that there is a greater chance that the individual to come next will have a similar temperament. Ginsburg will probably retire to be sure a Democrat chooses her successor.

I think a strong case could be made that that was the case for both of the justices who have bowed out during Obama’s term.

Circumstances don’t always work out so neatly for justices, however. Even though he was said to be unhappy that George H.W. Bush would choose his replacement, by age 82 liberal Thurgood Marshall no longer felt he could hold on, and retired even under a Republican president.

That’s where those quick calculations come in.

To be clear, I wish no one ill health. Each current member of the Supreme Court got to his or her job in a perfectly legitimate way, and should stay in office as long as he or she feels comfortable doing so.

But the hard progression of age is just that, and should Obama see a second term, the two remaining Reagan appointees, Antonin Scalia and Anthony Kennedy, would be close to 80 by the end of Obama’s eight years.

Should either of these conservatives were to leave office, replacing him would represent a major opportunity for Obama to fundamentally shift the direction of the Supreme Court.

And if it were Scalia to depart, replacing him would be particularly momentous. Although Chief Justice John Roberts is just as conservative as Scalia, the Reagan appointee is often described as the “intellectual anchor” of the conservative wing of the court. Replacing Scalia would probably be about as momentous as replacing the chief justice himself.

The publisher of On The Hill, Scott Nance has covered government and Washington for more than a decade. Capitol Idea is his regular column from Washington. The article was first published as Obama’s Most ‘Supreme’ Influence Could Come In a Second Term,” on Blogcritics.org.

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