Supreme Court in no danger of major shift any time soon

Supreme Court in no danger of major shift any time soon

It will not take much for President Barack Obama to find a replacement for Justice David Souter who adds to the court’s diversity.

About the only candidate who wouldn’t broaden the court’s profile would be a white Catholic male who graduated from Yale or Harvard and served on a U.S. District Court of Appeals.

Including the departing Souter, here’s a diversity snapshot of the nine-member court: eight are white, eight are male, five are Catholic, all but one graduated from Yale or Harvard, all served on a federal appeals court and seven were appointed by Republican presidents. The only member of the court who stands out from the pack on three counts is Ruth Bader Ginsburg, a Jewish woman appointed by a Democrat Bill Clinton.

So forgive us if we don’t join those who profess alarm that President Obama might pursue some kind of racial, ethnic or gender road map in picking a replacement for Souter. And it has been almost absurd to hear some pro-life groups demand that the president not nominate a justice who doesn’t share their view on abortion. They’ve been able to demand that Republican presidents perform the Roe v. Wade litmus test on court nominees for decades. But Obama ran as a pro-choice candidate, and elections have consequences.

There really isn’t cause for liberals to be excited or conservatives to be alarmed about the impending retirement of Souter. Whoever is nominated by Obama won’t be dramatically changing the composition of the court or how it votes.

How they stand

When the court splits on ideologic lines, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito are on the right. Justices Souter, John Paul Stevens and the only two Democratic nominees, Ginsburg and Stephen Breyer are on the left. Anthony Kennedy, an appointee of Ronald Reagan, is most often the swing vote.

It’s quite possible that if Obama got to name three nominees to the court, the voting pattern would not change by much. The next justices most likely to retire are the two oldest members of the court, Stevens at 89 and Ginsburg at 76, and they’re both on the liberal side of the line.

There will doubtless be talk about activist judges versus strict constructionists, but as we have noted before, justices on the right and on the left have shown themselves to be adept in finding ways to arrive at predictable decisions.

If President Obama really wanted to shake up the court he would nominate someone who would call-out another member of the court for sitting on a case where there was an obvious conflict of interest. We are reminded of the time that Scalia flew on Vice President Dick Cheney’s private plane to a hunting lodge, even though the court had before it a high-profile case involving Cheney. The vice president was being sued by environmental groups that wanted to know which energy company executives and lobbyists helped draft the Bush administration’s energy policy.

“If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I imagined,” Scalia responded to critics. It would be refreshing if just one of the other justices cared enough under such circumstances to point out that lesser federal judges are expected to avoid the appearance of impropriety, and justices should do likewise.

If Obama actually found a nominee willing to rock the court’s boat, that would be the ultimate minority justice.