Both on the Supreme Court – where “swing vote” Justice Anthony Kennedy and conservative Justice Antonin Scalia are age 76 – and on the courts of appeal, where there are now 14 vacancies, Obama would be able to nudge the courts in a progressive direction if he wins a second term.
Curt Levey, president of the Committee for Justice, a conservative group that tracks judicial nominations, said Chief Justice John Roberts’ decision to join the four liberal-leaning justices in upholding Obama’s Affordable Care Act “has made conservatives think somewhat differently” about judicial nominees. “There’s a lot of sober thinking among conservatives that it is not just enough to appoint somebody who we know to have the right philosophy – you have to appoint somebody who has shown, either as a judge or perhaps in some other setting, that they will stick with that philosophy even when there’s political pressure to do otherwise.”
Of course, it’s not just those on the right who are warily watching the election outcome and its impact on the judiciary. Doug Kendall, president of the Constitutional Accountability Center, a progressive think tank and advocacy group, said, “I think a Romney presidency has a far greater potential to shift the court to the right than a second Obama term would have the potential to shift it to the left.”
Kendall said the most likely high court retiree is Justice Ruth Bader Ginsburg, 79, appointed to the court by President Bill Clinton in 1993. “If President Romney nominates her successor, it will have a huge impact on the ideological balance of the court. If President Obama appoints Justice Ginsburg’s successor it will simply continue the current ideological balance and will not move the court to the left at all.”