Supreme Speculation

With the election of President Barack Obama, speculation inevitably turns to how a Democratic administration might respond to potential vacancies on the Supreme Court. With a wobbly balance of liberal and conservative justices who have decided a number of cases by a five-to-four margin, the Court has teetered on the swing vote of Justice Anthony Kennedy. Conventional conjecture holds that as many as three of the current justices may soon step down, and liberally minded court-watchers, who wish for change in the judicial as well as the executive and legislative branches of our government, might well be hoping the time is right for the scales of justice to finally come down on their side. 

According to Henry J. Abraham, James Hart Professor Emeritus of Government and Foreign Affairs and an internationally recognized scholar of the Court, the sea change these folks are expecting may be premature.

Abraham, who literally wrote the book on history of nominations and appointments to the United States Supreme Court (Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II, 2008, Rowman & Littlefield Publishers, Inc.) and knows many of the justices personally, thinks impending retirements from the Court-if indeed there will be any soon-may be limited to just one, and from the liberal wing. 

Thus, Justice John Paul Stevens, who is 88, and has served on the Court for 33 years, has been mentioned as a potential candidate for retirement. So, too, has Justice Ruth Bader Ginsburg, who at 75 has had some health problems in recent years. Neither, according to Abraham, has given any present indication of wanting to step down. 

The professor has reason to believe, however, that Justice David Souter, the third name frequently mentioned, might indeed want to do so. "I think he's had enough," Abraham said, adding that Justice Souter, who is only 69, has not been truly happy during his 18 years on the Court. "I suspect that he might be ready to go back home to New Hampshire."

Abraham suggests that, regardless of who leaves, a vacancy, when it comes time for President Obama to recommend someone to the Court, will likely be filled by a sitting jurist from the second most important federal court level in the country, one of the thirteen United States courts of appeals. Chances are also excellent that the nominee will be Hispanic-American and/or female. 

Abraham points out that, not only has an Hispanic-American nomination been likely for some time, but that the Hispanic community provided the new president with an unexpectedly large and important margin from its community in his election victory.  

While the pool of qualified jurists who fit that criterion is relatively small, Judge Sonia Sotomayor from the U. S. Court of Appeals for the Second Circuit has been prominently mentioned as a potential nominee. 

Whether it is Sotomayor or some other qualified jurist who is selected, Abraham would personally prefer that judicial nominations be based primarily on merit rather than on the concept of "representativeness." He points out that the task of Supreme Court justices is to interpret the Constitution not to legislate, and that nominees are under no obligation to serve a particular constituency.

For example, "I suppose many people expected [Justice Clarence Thomas] to be the "representative" of the black community," Abraham said, "yet a majority of the black community has been disappointed by what is regarded as his conservative jurisprudence, including his stance on affirmative action." 

While aspects of the process of nominating and confirming justices to the Supreme Court may well be political, "it doesn't necessarily follow that the nominee will perform as the nominator expects," Abraham warned. "[Justice Samuel] Alito and [Chief Justice John] Roberts may not have disappointed their nominator, President [George W.] Bush, but there's no guarantee-as is demonstrated by the jurisprudential record of, for example, Justices Stevens and Souter."