McCain, Obama, and Future Vacancies on the Supreme Court

by Sara Crouse and Brittany Friesth

There has been much speculation about the potential for future Supreme Court justice nominations drastically changing key decisions from the past 30 years. In a recent article by USA Today, former U.S. solicitor generals Walter Dellinger stated,

“People don't realize how much is at stake. It is highly likely there will be (up to) three vacancies in the next president's first term. Justices serve on average 25 years. That's six presidential terms. They make life or death decisions.”

Could the upcoming justices have the potential to take the Supreme Court in an ideologically different direction than seen in previous years?

While Obama’s and McCain’s political ideologies vary, understanding what lies in selecting a nominee for the Supreme Court is a different matter. It is almost inevitable that one and perhaps even two or three new nominees will be confirmed during the next presidency.

It is possible that Justices John Paul Stevens, Ruth Bader Ginsburg, and David H. Souter are all approaching retirement age, despite the fact that they could hold their positions for life. Justice Stevens was appointed in 1975 by President Ford, and is 88 years old. Justice Ginsburg has stated she may want to retire at the age of 75. Lastly, Justice Souter also mentioned retirement and possibly returning home to New Hampshire.

How would the makeup of the Supreme Court change with the absence of Stevens, Ginsburg, and Souter? The three justices make up 75% of the so-called ‘liberal bloc’ of the Supreme Court. This would leave the court with four remaining justices on the conservative side, one swing vote, and one on the liberal side. Therefore, the next president’s political ideology will determine the future composition of the Supreme Court, which could lead to a rethinking of many liberal-leaning decisions of the past 20 years.

Senator John McCain speaks directly on his website about what constitutes a great Supreme Court justice, noting that his selections would be similar ideologically to current conservative justices. The website reads,

“As President, John McCain will nominate judges who understand that their role is to faithfully apply the law as written, not to impose their opinions through judicial fiat.”

That statement can best be interpreted as saying McCain believes in interpreting the Constitution in keeping with the original document. He feels the document should not change merely based on changing opinions in society. One decisions conservatives have targeted is Roe v. Wade.

When asked in an interview, with Tim Russert in January 2000, whether he supported a constitutional amendment to ban all abortions John McCain responded,

“Yes, sir.”

In 2006 his position had changed to,

“I don’t think a Constitutional amendment is probably going to take place. But I do believe that it’s very likely or possible that a Supreme Court should – could overturn Roe v. Wade, which would then return these decisions to the states, which I support that.”

Senator Barack Obama’s criteria for Supreme Court justice nominees are not listed on his official website, though he has voiced his opinion during interviews over the past few years. In one such interview Obama stated,

“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

Senator Obama seems to mean a liberal judge who is in touch with current social issues and would expand civil rights for disadvantaged groups. He believes in the Constitution as a living document that should change with and adapt to society.

During the last presidential debate Obama responded to moderator Bob Schieffer’s questions on abortion by stating,

“Ultimately what I believe is that women in consultation with their families, their doctors, their religious advisers, are in the best position to make this decision. And I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum.”

Senators McCain and Obama have very different ideas about Supreme Court justices, abortion, and constitutional law, which would mean vast differences in the nominees they might appoint in the next four years.

Lesson: As a voter, one should be aware that the next President may make severall lifelong appointments to the Supreme Court. Selecting conservative or liberal judges will change the makeup of the Supreme Court. It is important to identify cases that could potentially remain the same or be overturned in the hands of the future Supreme Court.