The Washington Post today has an article on the hopes and dreams of Democrats to fill the Supreme Court with more liberal appointees, "Some Legal Activists Have Hearts Set on 'True Liberal'". It's true that if McCain wins [shudder], the court will be firmly in the 5/9 conservative territory. Additionally, Democrats on the court tend to be older and one could assume that they will consequently retire sooner, leaving more spots for conservatives to potentially fill.
Below is a chart comparing age (at the start of the next president's first term) and overall conservative voting record (from Rational Judicial Behavior: A Statistical Study). Albeit not a perfect correlation, it appears that the younger the Justice, the more conservatively they vote. The implication is that they will also have a longer future period of influence.
Moreover, this court currently holds 4/5 of the most conservative justices since 1937, according to Rational Judicial Behavior: A Statistical Study, a very thorough study by Landes and Posner, both of the University of Chicago Law School. Geoffrey Stone, a law professor at the same institution said:
It is a court with no true liberal on it, the most conservative court in 75 years. What we call liberals on this court are moderates, or moderate liberals, if you want to get refined about it.From the Landes and Posner study Clarence Thomas ranks as the most conservative justice since 1937, while the first African American to serve, Thurgood Marshall, was ranked the most liberal. Using the Landes and Posner study, one can also analyze civil liberties voting records, again presented as fraction of conservative votes. Not surprisingly, Stevens, Ginsburg, Breyer, and Souter are the only ones who vote liberally >50% of the time. Kennedy, the "independent", votes conservatively on civil liberty issues >70% of the time.
For those of you that only get your news from USA Today, I have also presented this same information in Bill O'Reilly info-graphic form.
Some Democrats are formulating a Supreme Court dream team already. Hillary's name was suggested in a op-ed in the Washington Post back in May by James Andrew Miller. He wrote:
Obama could also trust that Clinton would maintain her image as a fighter after arriving at the court. Her tenacity has never been more apparent. President Obama would engender praise (at least from Democrats) at the prospect of Hillary going toe to toe with Clarence Thomas, Antonin Scalia and Samuel Alito. Clinton's gumption and determination might make her one of the most powerful forces ever on the court, particularly when it comes to swaying other justices when the court is closely divided.As a fervent Hillary supporter, I think that this is a great idea, but I am not sure we can count on Obama for her nomination. From the Washington Post article:
It comes down to my simple demands:
Obama himself has been opaque and even contradictory about his criteria for a justice. He voted against both Roberts and Alito, and has said he sees Ginsburg and Justices Stephen G. Breyer and David H. Souter as the kinds of "sensible" justices he would favor.
Yet, as the court's term ended last month, he praised the court's decision in support of an individual right to gun ownership that struck down the District of Columbia's handgun ban, a decision in which Roberts and Alito were in the majority and liberals dissented.
- Elect Obama.
- Nominate a true liberal, who is also really young or has the ability to live forever.