Conservatives who don’t think they have much stake in the 2012 election should consider two words: Justice Holder. Yes, whoever gets elected could have the opportunity to appoint multiple justices to the Supreme Court.
Consider that the justices not appointed by Obama range in age from 79 years (Justice Ruth Bader Ginsburg) to 57 years (Chief Justice John Roberts). There are four justices who are at least 73.
The left is no doubt already planning its attack on the Supreme Court should it strike down Obamacare and/or uphold most of the Arizona immigration law. The left says the conservative justices are too ideological or rude, even. (Advocates and legal observers know interruption is the rule, not the exception at the Supreme Court. That Justice Sonia Sotomayor blithely told the solicitor general no one was buying his argument is of no moment, I guess.)
The starting premise for the left and the media is that justices nominated by Democratic presidents are “fair” and “open-minded” while those appointed by Republicans are “extreme” and “ideologically rigid.”
Should President Obama get reelected, liberal justices in their final years on the bench will likely make a dash for the retirement line to assure their replacements are like-minded. If Attorney General Eric Holder is a bridge too far, don’t we think California Supreme Court Justice Goodwin Liu would be on the short list?
With a new mandate and perhaps a Senate majority in his second term, Obama would have nearly a free hand in appointing justices. How many conservatives think that Senate Republicans would have the nerve to shut down the chamber to halt Holder or a series of like-minded liberal appointee? (Recall that Holder was confirmed as attorney general by a vote of 75-21.)
Conservatives who doubt Mitt Romney’s conservative bona fides should consider that he would want their support and a second term, so his appointees are not likely to be stealth candidates let alone someone with a “creative” methodology for interpreting the Constitution. I have no doubt that the most conservative justice Obama would ever nominate would be to the left of the most liberal one Romney could come up with.
All of this said, the Supreme Court appointments haven’t gotten much attention yet in the general election. It is early, but it is worthwhile, I think, for Romney to tell the voters about his own views on the matter. We know (because he’s previously told us) that Obama is big on “empathy” and wants diversity (not however diversity in philosophy or education). But what are Romney’s views on the matter? It would behoove Romney at some point to remind voters of what is at stake and what he considers to be the role of the courts and the appropriate judicial philosophy in our Constitutional system.