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Supreme Court’s future may hinge on election

The next president is expected to name at least one new justice to the closely divided court.

By / October 22, 2008

Charles Dharapak/AP/FILE



Whoever is elected president on Nov. 4 is expected to name at least one new justice to the US Supreme Court, and perhaps as many as three.

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With the nine-member court closely divided on hot-button issues like abortion, affirmative action, and the death penalty, a change in personnel could set the stage for big changes in the law. Despite such high stakes, the future of the court has yet to emerge as a central election issue.

The justices most likely to retire during the next four years, legal analysts say, are all members of the court’s liberal wing: John Paul Stevens, Ruth Bader Ginsburg, and David Souter. That means should John McCain replace a sitting liberal justice with a conservative justice, the balance of power on the court could shift decisively to the right on key issues. On the other hand, should Barack Obama replace a sitting liberal justice with a liberal nominee, the balance of power on the court would likely remain largely unchanged.

But Senator Obama’s first appointment need not be a mere place holder, some analysts say. He could use the nomination to appoint a relatively young, progressive justice capable of going head-to-head with conservative Chief Justice John Roberts for the next 20 to 30 years.

“The long-term trajectory of the court is in play,” says Richard Garnett, a constitutional law professor at Notre Dame. “[Obama] is going to want to appoint the next [William] Brennan or a left-leaning version of John Roberts.”

A list of those mentioned as potential Obama nominees is growing. Among the youngest on that list are Harvard Law School Dean Elena Kagan, Massachusetts Gov. Deval Patrick, Harvard Law Prof. Cass Sunstein, and Yale Law School Dean Harold Hongju Koh.

On the other side, any nomination by Senator McCain would have to survive not only a Democratic Senate hostile to a strong conservative but also an aggressive Republican base that chewed up President Bush’s Harriet Miers nomination because she wasn’t considered a heavyweight conservative.

“I think a President McCain would find himself between a rock and hard place,” says Douglas Kendall, president of the Constitutional Accountability Center, a liberal think tank in Washington.

Among those mentioned as potential McCain nominees are US appeals court Judge Michael McConnell, Supreme Court advocate Maureen Mahoney, and former Bush Solicitor General Paul Clement.