One of the things Democrats wail about whenever our local panic monkeys say they can't support a given nominee is the importance of the next few appointments to the Supreme Court. Often we say that the next president may shape the make up of the court for some time to come; that the next president will make certain determinative choices in his or her appointments to the highest court in the land. Sadly, that's just not true.
Presidents Reagan & the Bushae have already determined the ideological character of the court for our generation and probably for the next. By appointing young men--primarily Catholics with established or presumptive anti-abortion credentials--as a matter of ideological policy over the past 22 years, the Court has dramatically shifted much further to the right than any could have expected a quarter of a century ago.
What's most likely to happen is that the next president will only have the power to save the Court from (or finally condemn the Court to) plunging entirely off the far end of the ideological spectrum. The next appointees will replace two of the last standing liberals (and they are liberals only by virtue of today's right-slanted jurisprudential standards). They are Ford-appointee 88 year old John Paul Stevens and 75 year old Ruth Bader Ginsberg, the latter having had some health issues over the past few years but hell bent on not retiring while a mad man was in the White House.
If a liberal president is able to replace them in the next few years, the court will remain ideologically unaltered. If John Hagee's new buddy is in office for the next four years, we may face the bitterest irony in SCOTUS history since Clarence Thomas replaced Thurgood Marshall. It is doubtful the next president will "fix" the Reagan-Bush warping of the Court.
The next oldest justices, Scalia & Kennedy, are in seemingly excellent health and, having come into office at a time when the clear understanding was "You get this honor, bub, only cause we think you got a good three decades of service in ya." Each can look foreward to at least another two, possibly three terms of good health before they start checking their cholesterol and gauging if they need to hold out through the next election. Rehnquist did this during the Clinton years, only to succomb to buyer's remorse when he observed exactly the sort of presidency he brought upon his nation. No doubt our two elder liberals have put off even considering retirement at least since the Harriet Miers fiasco.
Here's the current demographics:
Justice, age, (age at confirmation)
John Roberts, 53 (50)
John Paul Stevens, 88 (55)
Antonin Scalia, 72 (50)
Anthony Kennedy, 71 (51)
David Souter, 68 (51)
Clarence Thomas, 59 (43)
Ruth Bader Ginsburg, 75 (60)
Stephen Breyer, 69 (56)
Samuel Alito, 58 (55)
In centuries past, the Court was an honored and far less politicized institution. Appointments came more frequently because appointments came under greater considerations than "how long do you think you can hold out?" Older men got nominated and nearly half of them retired before Death came a callin'.
Today when justices get ultimate legal gig, the expectation is that they'll clutch their bench seats with a miser's hold. The ideological calcification brought into American politics by the current "Jesus Loves Me and Hates You" generation of conservatives has made each new judicial appointment a long term binary investment--are you for or against
our side in the culture wars? Republicans have been quick to seize upon this reality--being the authors of it (to be fair, they would doubtlessly blame it all on activist hippie judges from the 70s, although concrete examples may be hard to come by). Each conservative, save Alito, appointed in the past 25 years has been 51 years old or younger. Thomas was a whippersnapper of 43. Fortunately they had a "job shadowing" program there back in the 90s and Scalia was able to teach him the ropes.
The kid's doing great now.
All of the kids are alright, in fact. The three youngest judges are superduper conservatives. Of the four judges bunched around the biblical allotment of three score and ten years, all are in spry health and two are lock step wingers. Only 69 year old Breyer passes for liberal. The fourth, 68 year old Souter, is standing proof of God's existence. He's still a conservative, but keeps having these pestiferous flashes of sanity right before the activist Right can carry out another hit job on the Bill of Rights.
The chance any of them will step aside to allow a new Democratic president appoint a replacement is remote--particularly the five majority justices currently serving who know they got appointed specifically for their displays of ideological rigidity. Politics for movement conservatives is war and they expect their foot troops not to surrender the field of battle. They're expected to man their stations until younger replacements arrive or until their deaths. So, don't get too optimistic about our next president turning the court back to the liberal halcyon days of the Burger Court. The damage is done; the Bill of Rights still falters at the whims of the Far Right. Unless we can ensure a decades-long liberal primacy, the highest federal court will not be a friend to progress. The best we can hope for is to contain the damage.
The cycles of history are not encouraging here. With the Religious Right holding its death grip on the Republican Party, it will fall upon Democratic presidents of the early 21st century to appoint judges who value the rule of law over ideological brownie points. The Republicans benefit today from a 40 year stretch in history in which Democrats have made only two appointments to the Republicans' collective 12. Jimmy Carter made no Supreme Court appointments. The American presidency, given the current partisan alignment, will probably waiver between Republicans and Democrats. The odds against correcting this environmental imbalance are remote.
Republicans, of course, call them "strict constructionist" judges, but in fact what they appoint are conservative activists. The only way to correct this ticking time bomb of regressive "justice" and conservative activism--with their radical agendas opposed to environmental regulations, opposed to protection of unions & workers' rights, intrusive designs on women's reproductive rights, hostility to nontraditional families, and an active disregard for the rights of the accused--is to somehow hope for a generational realignment in our national politics. That's the long term political goal we on the progressive side of the fence must work for.
The next president will appoint justices to replace liberals Stevens and Ginsberg. I don't think we can count on much more, unless Justice Breyer decides not to risk it a few years further down the road. The six conservative Republicans on the bench can certainly ride out an eight year stint under Presidents Obama or Clinton. It is the presidents who take office as these men hit their mid-80s--the ball starts rolling after 2020--who we will look to restore the balance.
That, my friends, is a long wait to wait.
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