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Obama’s Most ‘Supreme’ Influence Could Come In a Second Term

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Appointing a new justice to sit on the Supreme Court is one of the most profound, and long-lasting, duties any president can exercise. Of course, he can carry out this particular responsibility only when a vacancy opens up, which can occur at such irregular intervals that they seem to happen at random.

George W. Bush got two chances to nominate two justices, including a new chief justice — both of which came only in his second term. Bush's father also had occasion to name two new justices, but his came during just the single four-year term he had in the White House.

Circumstances allowed Ronald Reagan to name three to the Supreme Court in eight years, which represented the ability to influence a third of the overall composition of the high court. Poor Jimmy Carter had no such luck, and never had a turn to nominate even a single Supreme Court appointee. Such quirks of presidential fate make it that much more extraordinary for Barack Obama to have fortuity to have named his second nominee in just his second year in office.

This rapid-fire track record is something Obama shares with the last Democrat to occupy the Oval Office. Bill Clinton, too, named a new Supreme Court justice in each of his first two years in office: Ruth Bader Ginsburg, and Stephen Breyer.

It remains to be seen, though, whether Obama continues to follow Clinton's pattern, or not. Although he was quick out of the gate, history never gave Clinton another crack at the Supreme Court.

Will Elena Kagan, too, be Obama's second and last nominee? Or does his future hold the promise of further chances to name a justice? Only time will tell, of course, but the question is worth consideration because Obama's high court picks thus far parallel Clinton's in another important way.

Like Clinton's selections of Ginsburg and Breyer, Obama nominees Sonia Sotomayor and (presumably) Kagan replace moderate-to-liberal justices that came before. None of the four succeeded, or would succeed, conservative jurists.

As we noted earlier, the timing of Supreme Court vacancies can be a funny, often-unpredictable thing. But what do we learn if we apply a little history and a few back-of-the-envelope calculations to an exercise in crystal ball gazing?

If we do, we could predict Obama quite probably may have at least one more chance at a court nomination in the short term — and could have an opportunity to make even more sweeping change if he wins re-election in 2012.

In the short term, we see Clinton nominee Ginsburg probably retiring in the next two years because of her cancer. If circumstances allow, justices often prefer to retire with a like-minded president in office so that there is a greater chance that the individual to come next will have a similar temperament. Ginsburg will probably retire to be sure a Democrat chooses her successor.

I think a strong case could be made that that was the case for both of the justices who have bowed out during Obama's term.

Circumstances don't always work out so neatly for justices, however. Even though he was said to be unhappy that George H.W. Bush would choose his replacement, by age 82 liberal Thurgood Marshall no longer felt he could hold on, and retired even under a Republican president.

That's where those quick calculations come in.

To be clear, I wish no one ill health. Each current member of the Supreme Court got to his or her job in a perfectly legitimate way, and should stay in office as long as he or she feels comfortable doing so.

But the hard progression of age is just that, and should Obama see a second term, the two remaining Reagan appointees, Antonin Scalia and Anthony Kennedy, would be close to 80 by the end of Obama's eight years.

Should either of these conservatives were to leave office, replacing him would represent a major opportunity for Obama to fundamentally shift the direction of the Supreme Court.

And if it were Scalia to depart, replacing him would be particularly momentous. Although Chief Justice John Roberts is just as conservative as Scalia, the Reagan appointee is often described as the "intellectual anchor" of the conservative wing of the court. Replacing Scalia would probably be about as momentous as replacing the chief justice himself.

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About Scott Nance

  • http://populistmanifesto.blogspot.com/ Realist

    I agree that Ginsburg is likely to decide soon to retire for health reasons, but replacing her with someone of similar temperament is not as likely as things might now seem. The deciding factor will be the mid-term elections, which Obama is doing his damnedest to throw to the Republicans.

    Despite frequent Democratic disdain expressed toward the possibility that the voters would reject Obama’s agenda and decide to return power to the GOP, such a result is growing more likely almost daily. The alleged economic recovery passes by Main Street without leaving so much as a candy wrapper or a stray Washington wafting about in the hot air emanating from DC regarding the growing good fortune for Wall Street banksters and how that trickle-down fantasy is good for all.

    If this situation holds true in November, and the Democrats lose power in the Senate to the Republicans, Ginsburg would be replaced with someone more like Kennedy so that Obama won’t have to suffer a defeat via the rejection of his nominee. This might well happen even if the Democrats hold on to a slim majority, for overriding a filibuster would be that much more out of reach.

    As for Scalia being 80, I believe he’s a tough enough bird to last until Obama is replaced by a Republican no matter how long that takes. But even if he’s not, suggesting that he might go during a second Obama term puts the honey wagon ahead of Ol’ Dobbin. Obama is lucky that America does not have the no confidence vote provision. He would have been gone a while ago if we did.

    So in closing, let’s see what relief Obama gives to Main Street and their reaction to said relief before we begin predicting who Obama will name to SCOTUS positions not yet vacated. Any other approach only adds to the superheated exhaust emanating from the Capital, and we’re already sweating out here.

  • Bill

    Sounds nice BUT HE IS DONE NOW! He is not getting re-elected.. You kidding me? The guy should be named head of the Republican Party he has done so much to help a “dead” party. Democrats are done this Nov. and will get walloped in 2012 unless something BIG happens soon. He is average to bad at best..

  • zingzing

    you two seem to forget that there are democrats in this nation. obama’s approval rating is positive in most of the polls out there. and while i’ll grant you that he had a pretty rough opening to his presidency, he’s picking up steam now. a lot of people out there agree with him and see the positive impact he’s having.

    i wouldn’t get complacent if i were you. that would be foolish, just ask a democrat about it. how the hell did bush win a second term? because the dems were in chaos and they just assumed that everyone could see bush was a fool. recognize the gop in that? good luck.

  • DemocratsareRepublicans

    Mark my word, the democrats are going to lose in the upcoming elections. and why? because they failed to make good on the promise of change and hope. now, people will stay at home and not vote while the racist Republicans whip up their base. and all the media will cheer about how the public is moving to the right and joining the racist Tea Party.

  • John Wilson

    Might be some truth there. A number of Obama supporters are disappointed that after working so hard for Obama he shifted to the right.

  • Glenn Contrarian

    Scott –

    Unless Obama decides not to run, is unable to run, or makes a truly monumental blunder – and he has NOT done so, despite what all the righties proclaim – he has a virtual lock on the next presidential election. Whoever the Republicans send up will essentially be a sacrificial lamb on the altar of partisan politics. We will be looking at a landslide in 2012 – almost certainly not to the level of Nixon’s landslide over McGovern, but a landslide nonetheless.

    In the short term, the Dems will lose quite a few House seats and some Senate seats (the benefits to the out-of-power party is almost always the case in mid-term elections) – but whether either will be enough to lose the chamber in question remains to be seen. The Republicans will claim once again (as they always do) that it’s a mandate of the American people…but when the 2012 election comes around, they’ll have to explain their ‘mandate’ in comparison to the all-but-certain Obama landslide.

    My concern is not the 2012 election, but the 2016 election, where we’ll see if by then the Republicans will have been able to pull out of their “I’m more conservative than the other guy” circular-firing-sqad vicious circle that will alienate many moderates who would otherwise vote Republicans.

    But then, by 2016 the Health Care Reform bill will have been fully implemented. Nearly all American citizens will have health insurance, and THAT is what will force the Republicans into a very uncomfortable corner…and their strategists know it.

    Then there will be the still-lingering effects of the Oil Spill From Hell, and Global Warming will come a-knocking again since we’re just now starting to come out of a solar minimum, and the much-more-liberal young voters of today will be more likely to vote than they are now, and let’s not forget the continuing alienation of minorities by the Republican party (the Republicans say they’re VERY multiracial…but I give more credence to the lily-white crowds at their political conventions)…

    …and especially if the economy remains on its current trend of growth and we begin to see a semblance of the boom days of the 1990’s…

    …it all adds up to some pretty rosy prospects for the Democrats in 2012 and particularly 2016. The Republicans’ ONLY real hope…is in a truly major catastrophe, whether national or global or economic. Without said catastrophe, Obama will win by landslide in 2012, and the Republicans will face a liberal trifecta in 2016. In all honesty, this may be the reason for the vehemence of their rhetoric, for the Republican strategists must be seeing all this coming down the pike…and perhaps the anger they showing might in reality be a mask to hide their fear.

    Grayson in 2016!

    You heard it here first!

  • http://ruvysroost.blogspot.com Ruvy

    On Sunday, I had to speak with a legal advocate for a religious court to help a lady straighten out some mistakes she had made in years previous. After submitting my sworn statement to a religious court judge, the advocate and I had a conversation as we both rode the bus to the center of Jerusalem. He lives in the same Brooklyn neighborhood I grew up in. His observation was that it was not particularly safe for a Jew to wear a kippá there – but at least he knows Arabic, and this helps him some.

    Obama has made some huge mistakes – and this advocate agrees with me that your dollar will be worth less than nothing in a year or two – so the “health insurance” you have wasted so much time arguing over will be worthless. Whether you or the Europeans plunge down history’s toilet first is rather irrelevant. You’re both going down the crapper soon either way – and we will NOT follow you.

    Obama’s “supreme” influence will be that in the future, you will spit and curse when you hear his name. NO, not because of the color of his skin. You will spit and curse because he will have ruined your lives and robbed you of the prosperity you once thought was your birthright.

  • Glenn Contrarian

    Ruvy –

    In every generation, there’s a small percentage of people who will swear up and down that person A or organization B is going to drive the world into Depression/Armageddon/some other utter catastrophe.

    Every once in a while, the small percentage of people are right. The vast majority of the time, they’re not only wrong, but worse than wrong…because they cannot see past the excuses for their belief, and they’ll claim that said catastrophe didn’t happen because they themselves raised the alarm, or God Himself protected the world, or the world simply got lucky.

    I recommend that you strive to keep from seeming like one of these people, Ruvy. I remember when I was thinking that Dubya was going to use Executive Order #51 to nullify the upcoming 2008 election. He could have…but he didn’t, and my assumptions against him hurt my credibility at least to some extent. And then there were my assumptions – heck, the assumptions of most of my shipmates at the time – that the Soviets were going to nuke us back into the Stone Age…so we all went out and bought guns and oh-so-seriously made plans for what we’d do When The End Came. Yeah, I used to be one of the right-wing gun nuts who thought that anyone who opposed gun rights and didn’t prepare for WWIII was a short-sighted idiot. After all, didn’t we all know the nukes were pointed at Main Street? Why, we could even see the Soviet Union from our bedroom windows! Well, not really, but we have the occasional overflight of a TU-95 Bear over our ship. Anyway, you get my meaning. The sky wasn’t falling then, and it isn’t now.

    You’re a good, intelligent man who means well and I’ve learned from you (and I do not patronize, for patronization is an insult dressed up like a bouquet), but your assumptions against Obama are hurting your own credibility and make you look like something less than what you really are. I would that you’d learn from my mistakes, from my own false assumptions.

  • http://ruvysroost.blogspot.com Ruvy

    Glenn,

    I’ve written a lot of scenarios and been just as wrong as you. I’ve pretty much quit the scenario business because of that. But I’ve been right in the general trend of my forecasting over the last six years, even though I’ve been off in many many specifics.

    Peres has proven to be a man who thinks he is the foreign minister of the country, and who steps on the authority of the prime minister regularly. I predicted this and I have been right.

    Netanyahu is turning out to be a traitor who is very susceptible to American pressure. I predicted this also and I’ve been right, in spite of the efforts of the press to portray him as a strong leader.

    America’s economic bubbles have burst, and now the bubbles in Europe’s economy are beginning to burst. I didn’t foresee the European problems, but friends of mine did. They predicted the collapse of the Eurozone a long time ago, just as I predicted the fall of the dollar a long time ago. The only thing holding up the dollar is the desire not to go broke. But as the pressure on the stock market drives down share values, eventually the dollar will crack. There will be temporary periods when people will flee to the dollar, thinking it is secure, but these periods of time will not last.

    As for Obama, he does have a record in the Senate, if you look for it. And his record, summed up in the results of his trip to Kenya, is abysmal. It is based on this record that made me predict him to be a disaster for you. And I am confident that I will turn out to be right, even though in some of the specifics, I may well be off….

  • http://rosenthalswelt.blogspot.com/ bonncaruso

    As one who does hardcore electoral statistics, I can tell you that Obama has the better hand of cards for 2012, no matter how you slice it.

    The economy was actually taking another hit in 1936 as FDR firmly whipped Alf Landon 60-40.

    In 1964, the economy was sputtering and the south was pissed off over the Civil Rights Act and still, LBJ won a massive landslide, 61-39 over Goldwater.

    At this point in the game in 1982, Reagan’s numbers were even a tick lower than Obama’s are now. And Reagan came back to win a 58-42 landslide in 1984.

    Bill Clinton’s numbers at this stage of the game in 1994 were under Obama’s, and his health care initiative had FAILED. The GOP of 1994 was also better organized than it is in 2010. And Clinton came back to trounce Bob Dole by 8 points in 1996.

    Winning percentage changes:
    FDR increased his PV% by 3 points in 1936 over 1932.

    Eisenhower increased his PV% by 2.2 points in 1956 over 1952.

    We cannot compare Nixon correctly, as he went from a 3 man race in 1968 to a two man race in 1972.

    Reagan increased his PV% by 8 points in 1984 over 1980. 1980 had a third party candidate (Anderson), who did get 6.6% of the PV ala Perot in 1996.

    Clinton, in 2 three-man races, increased his PV% by 6 points in 1996 over 1992.

    GWB43 does not fit the re-election pattern as well. His popularity numbers were soaring after 9-11 and yet his re-election was a lean win against John Kerry, who (many do not know this fact) got the highest percentage of a losing candidate fighting against an incumbent in the entire history of the Union.

    GWB43 increased his PV% by 3 points in 2004 over 2000.

    FACIT:
    Obama is poised to pick up between 3-5 points in 2012 and add 5 to 8 states to his column.

    Only 4 times in 114 years has an incumbent been turned out of office, and in 3 of those four occasions, the incumbent was a republican:

    Hoover in 1932
    Ford in 1976
    Carter in 1980
    Bush 41 in 1992.

    In most cases, the incumbent was re-elected and only in the case of Woodrow Wilson was his re-election win leaner than his initial win.

    Many wish to compare Obama to Carter in the hope that he will also be a one term president, but statistically, the comparison to Ronald Reagan fits much better most of the time.

    The 1st amendment guarantees us all the right to as much propaganda as we want. But demographic and electoral statistics tell me that the probability of Obama winning a LARGER landslide in 2012 than he won in 2008 is extremely high.

    I did a complete statistical analysis to this in late 2007.