06 July 2008


The Supreme Court recently handed down some 5-4 decisions that extended habeas corpus rights to illegal combatants captured on the battlefield, and found that the death penalty is unconstitutional for child rapists. These decisions are being used by some Republicans to illustrate how important it is to elect John McCain in November, since McCain says the justices that he would appoint would be like Roberts and Alito.

I don't buy that argument, though. First, let's keep in mind that seven of the nine justices currently on the court were nominated by Republican presidents. Of the majority in the two decisions noted above, three of the five were Justices Kennedy (nominated by Reagan), Souter (nominated by G.H.W. Bush), and Stevens (nominated by Ford). Kennedy is usually a wildcard, while Souter and Stevens are usually liberal. In any case, those three justices prove that there is no guarantee that a Republican president will nominate a conservative judge.

Second, this is McCain we are talking about here. McCain said in early 2008 that he had gotten the message on immigration, but since he has the Republican nomination all but sewn-up, he is now back to his Comprehensive Amnesty Immigration talk. Considering that, why should anyone believe that Mr. Gang of Fourteen would nominate judges who are like Roberts and Alito? Sure, he says he will now, but when the time comes to nominate a justice to the Supreme Court, the odds are good that the maverick will reach across the aisle and pick a moderate that can be supported by the almost certainly Democrat-run Congress. You know, a moderate like Stevens or Souter.

The youngest of the conservative justices currently on the Court is 53, the oldest is 72, and their average age is 61. The youngest of the liberal justices currently on the Court is 68, the oldest is 88, and their average age is 75. The remaining swing vote justice is 71.

The odds are that any openings on the Supreme Court would come from the ranks of the liberal members; keep in mind that oldest conservative is only four years older than the youngest liberal, and sixteen years younger than the oldest liberal. That makes the worst case scenario one of keeping the ideological make-up of the Court that same as it currently is for the next four years.

For Conservatives, neither presidential candidate looks good for the make-up of the Supreme Court. Since most of the conservative justices are relatively young, however, it is also unlikely that either presidential candidate will make the make-up of the Supreme Court any worse than it already is.


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