Monday, June 27, 2016

Next President Will Define U.S. Supreme Court to 2040

Supreme Court justices, federal court of appeals judges, and federal district court judges are nominated by the President and confirmed by the United States Senate, as required in the U.S. Constitution. The next president we elect could very well appoint four to five Supreme Court Justices and many dozens of federal court judges.

During the course of the 2016 Presidential primary debates, debate moderators prompted no discussion about the impact this election likely has on the makeup of the U.S. Supreme Court. The death earlier this year of Associate Justice Antonin Scalia at age 79 serves as a reminder several other high court justices will be as old and older than Justice Scalia when the next president takes the oath of office in January 2017.  The average age at which a Supreme Court justices currently retire, or die in office is age 78.7, an all time high.

When the next president takes the oath office, Associate Justice Anthony Kennedy will be almost 81 years old, Associate Justice Ruth Bader Ginsburg will be 83 years old, and Associate Justice Stephen Breyer will be 78 years old.

Republicans, who control the U.S. Senate, have promised their base they will not affirm a replacement for Justice Scalia until the next president takes office, allowing the new president to renominate Pres. Obama's nominee, the moderately liberal Judge Merrick Garland, or nominate someone else.

Garland, who just last week was given the American Bar Association’s highest rating, was nominated on March 16th and has already waited 104 days without so much as an indication that Republicans will even consider a hearing. Republicans argue that the timing of this SCOTUS vacancy is unique but, according to the White House, “Six Justices have been confirmed in a presidential election year since 1900,” and “Every nominee who was not withdrawn has received a vote within 125 days of nomination.”

Associate Justice Clarence Thomas, a reliable conservative vote on the Supreme Court, is mulling retirement after the presidential election, according to court watchers.

The next president will certainly nominate a person to fill Justice Scalia's chair on the high court bench immediately after taking the oath of office, if Republicans hold to their promise to not approve anyone nominated by President Obama. But Judge Merrick Garland is likely more conservative than anyone President Clinton is likely to nominate, so senate Republicans may decide to approve his appoint in a lame duck session of congress, if Hillary Clinton wins election, and Republicans loose control of the Senate.  But Republicans are just as likely to not act on Judge Garland as one last insult to President Obama before he too leaves office.

At least one of Justice Kennedy, Justice Ginsburg, or Justice Breyer are likely to retire during the next president's first term of office, perhaps even all three. The likelihood all three will retire by the next president' second term goes up considerably.   If the rumors are true Justice Thomas has decided to retire after the next president takes office are true, the next president could potentially appoint 5 justices to the Supreme Court.  Those justices will likely hand down legal opinions for the next 30 years.

If Hillary Clinton wins election, and Democrats take back control of the Senate, President Clinton will have the opportunity to appoint four or five progressive justices to join Justices Kagan and Sotomayor to establish the most progressive court since the Warren and Burger courts.
The Warren Court from 1953 through 1969 dramatically expanded the force of Constitutional civil liberties. It held that segregation in public schools violates equal protection (Brown v. Board of Education, Bolling v. Sharpe and Green v. County School Bd.) and that traditional legislative district boundaries violated the right to vote (Reynolds v. Sims). It created a general right to privacy, granting the right for women and men to obtain and use birth control (Griswold v. Connecticut), limited the role of religion in public school (Engel v. Vitale and Abington School District v. Schempp), incorporated most guarantees of the Bill of Rights (right to vote, civil rights), and required that criminal suspects had right to be apprised by police of  5th amendment right and right of appointed counsel (Miranda v. Arizona and others). In the early years of the Burger Court from 1969 through 1986, before Nixon's and Reagan's conservative court appointments swayed decisions farther and father right,  the court expanded Griswold's right to privacy to strike down abortion laws (Roe v. Wade) and sodomy laws (Lawrence v. Texas).
It’s unfathomable what Donald Trump would do with his court appointments if he wins election to become the next president. If Trump wins election, Republicans will likely retain control of the senate. President Trump, backed by a Republican controlled Senate, will like create a Supreme Court that will reverse every progressive decision handed down by the Warren and Burger Courts.
As President Obama enters his final months in office, dozens of seats on federal court of appeals and district courts remain unfilled. From the moment Republicans won the Senate majority in 2014, they've put a halt to the judicial confirmation process. There's a growing judicial crisis of delayed justice from a growing backlog of cases caused by Senate Republicans who refuse to approve any federal court judge nominated by President Obama. As federal judges retire or die, Republicans are intentionally creating widespread judicial vacancies in federal courts across the country to frustrate Americans seeking justice in federal courts. It's another way to make Americans angry about a government, and president, that ignores them.

Since taking control of the Senate in early 2015, Republicans have confirmed only 17 federal judges, If the Senate doesn't confirm any appellate judges this year, it will have confirmed the fewest since the 1897-98 session, when there were just 25 circuit court judges nationwide, compared with 179 now.

There are 87 current federal court vacancies. President Obama has sent 61 judicial nominations to the Senate, including Judge Garland's Nomination to the Supreme Court. Senate Republicans are unlikely to act on any President Obama's nomination until after Election Day, if then.

The Center for American Progress Last month released a report highlighting the vacancy crisis in Texas, where there are currently 11 open judicial spots, with a 12th vacancy expected to come in the near future. Nine of those are considered "judicial emergencies," a government designation for courts that are overburdened by empty seats. "Such an enormous backlog on the dockets of federal courts keeps families and businesses from obtaining the justice they need and deserve," the report says, noting that 4,638 of 7,765 cases filed with the 5th Circuit appellate court in 2014 were left pending at the end of the year, and the backlog has likely grown since then.
The next president backed by a Senate controlled by the president's own party will have the opportunity to fill the backlog of judicial vacancies and expeditiously fill vacancies that occur during the next president's term of office.

A new Public Policy Polling survey of registered voters in six swing states -- AZ, IA, NH, OH, PA and WI shows Republican judicial obstruction in filling federal court vacancies combined with Donald Trump's presumed nomination creates a drag on the overall Republican ticket. As the PPP memo on the surveys explains:
New Public Policy Polling surveys in 6 key battleground states where Republican Senators are up for reelection this year find that voters don't trust Donald Trump and would rather have Barack Obama picking a new Supreme Court justice than him. As a result they overwhelmingly support hearings on Judge Merrick Garland's nomination to the Supreme Court, and are inclined to punish the vulnerable Republican Senators who are holding up his selection.
...-Voters in all six states, by margins ranging from 5 to 23 points, say they don't trust Donald Trump to nominate a Supreme Court justice. Voters in WI (34% trust Trump, 57% don't) and in the home of Judiciary Committee Chair Charles Grassley of IA (35% trust Trump, 52% don't) are particularly skeptical of Trump's ability to name a Justice.
Further, the memo states "voters in all six states clearly say that they *do* trust President Obama with the responsibility of making a Supreme Court selection, especially in contrast to Trump. In the key Presidential battlegrounds of Iowa, New Hampshire, Ohio, Pennsylvania, and Wisconsin Obama has at least a 9 point advantage over Trump on that question in every state.

Poll respondents said they trusted Obama more than Trump for selecting the next Supreme Court justice by the following margins in each state: AZ+1; IA+10; NH+14; OH+11; PA+9; and WI +17. In addition, "More than 60% of voters in each of these states supports hearings for Garland, by margins ranging from 38 to 46 points. That includes overwhelming support from critical independent voters, and even plurality support from Republicans in 4 of the 6 states"

The PPP surveys indicate that Republican senators in these six states are in trouble --- "5 of the 6 have negative approval ratings and the one exception, Chuck Grassley, still has his worst approval numbers in years with them coming in only narrowly on positive ground at 43/40. Voter unhappiness about obstructionism on the Supreme Court issue could be what flips all these toss up races into the Democratic column and gives them control of the Senate next year..."

President Clinton backed by a Senate controlled by Democrats can reverse 35 years of Republican efforts to stack the federal courts with federal judges. Again, it’s unfathomable what Donald Trump Backed by a Republican controlled Senate would do with his federal court appointments, if he wins election to become the next president. Which president do you want to appointment judges to the federal courts?

Supreme Court make up when the next president takes the oath of office.

Justice Date of Birth Age When
Next Pres
Takes Office
Appointed by Appointment Effect Tenure When Next
Pres Takes Office
John G. Roberts 1/27/1955 61 yrs, 3 mo, 22 days George W. Bush 9/29/2005 11 yrs 3 mo 22 days Strong
Samuel A. Alito, Jr. 4/1/1950 66 yrs, 11 mo, 20 days George W. Bush 1/31/2006 10 yrs 11 mo 20 days Strong
Clarence Thomas 6/23/1948 68 yrs, 2 mo, 28 days George H. W. Bush 10/23/1991 25 yrs 2 mo 28 days Extreme
Antonin Scalia 3/11/1936 - 2/13/2016 Died in office at age 79 yrs, 4 mo.
Vacancy unfilled.
Ronald Reagan 9/26/1986 29 yrs 4 mo, 18 days Extreme
Anthony Kennedy 7/23/1936 80 yrs, 11 mo, 2 days Ronald Reagan 2/18/1988 28 yrs 11 mo 2 days Moderate Conservative
Stephen Breyer 8/15/1938 78 yrs, 5 mo, 17 days Bill Clinton 8/3/1994 22 yrs 5 mo  17 days Moderate
Ruth Bader Ginsburg 3/15/1933 83 yrs, 5 mo, 10 days Bill Clinton 8/10/1993 23 yrs 5 mo  10 days Progressive
Sonia Sotomayor 6/25/1954 62 yrs, 5 mo, 12 days Barack Obama 8/8/2009 7 yrs 5 mo 12 days Progressive
Elena Kagan 4/28/1960 56 yrs, 5 mo, 13 days Barack Obama 8/7/2010 6 yrs 5 mo 13 days Progressive

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