Bench press

"Bench press" Continued...

Issue: "Geo-gizmos," April 25, 2009

The ultimate hope among conservative lawmakers is that if Obama overreaches in his judicial picks, then Democrats may face a backlash in the polls during the 2010 Senate races. Such political costs could force Obama to make marginally more moderate picks in future openings, says Ed Whelan, president of the Ethics and Public Policy Center.

The stakes are undoubtedly high. As the often used phrase "let the courts decide" makes clear, the judicial branch is usually the final arbiter on such issues as religious liberties, abortion, gay marriage, gun laws, pornography, and the fate of suspected terrorists in the ongoing war on terror. Liberal-minded courts could trump state laws like amendments defining marriage as a union between a man and a woman and parental consent laws on abortion. Judges in the activist mold could also jeopardize the ability of Christian organizations to worship in schools on the weekends or to gather at state and university campuses.

"You can win a lot of things in the courtroom that you can't win at the ballot box," says conservative court blogger William Smith.

Furthermore, as Obama continues to peddle big-government answers to everything from education to health care, he will simultaneously be stacking the court with judges more inclined to share his worldview and uphold any expanded government measures when the new policies are challenged in court.

With Justice John Paul Stevens turning 89 this month and with three other justices older than 70 (including Justice Ruth Bader Ginsburg, who was hospitalized this year for cancer treatments), Obama could appoint as many as three new members to the Supreme Court, predicts Curt Levey of the Committee for Justice.

But Obama, who may face retribution from his former Republican colleagues in the Senate for opposing both of Bush's two Supreme Court picks, could dramatically shift the high court if elected to a second term, adds Levey. That is when conservative Justice Antonin Scalia and crucial moderate swing-vote Justice Anthony Kennedy may retire.

Despite this real potential of looming Supreme Court confirmation wars, the Heritage Foundation's Robert Alt warns that Obama could further alter the legal landscape through appointments to the influential lower courts. Alt says, since the Supreme Court maintains a small docket, the majority of cases have their final say and laws are approved or rejected in the nation's appeals courts. Currently there are 15 vacancies on the appellate courts. But congressional Democrats are pushing legislation to expand the federal judiciary-with 14 new appeals court judgeships and 50 district judges. A similar bill died in Congress last year. But Democrats, invigorated by larger congressional majorities and with ownership of the White House where these new judges are ultimately named, are expected to seek the expansion with renewed vigor.

A recent Brookings Institution study predicted that-with expected retirements and current vacancies-Obama will be able to nominate one-third of all appellate court judges during his first term, something it took Bush eight years to accomplish.

This prediction has Alt convinced that Obama's most lasting legacy will not be changes in health care or education reform or government bailouts-but a remaking of the nation's judiciary with new judges on benches eager to take a more active role in public policy: "Elections have consequences," says Alt, "and Obama could end up leaving an enormous mark in a very short period of time."

Before that happens, conservatives hope that Republicans will come to the next judicial nominating party, this time ready to tango.

Edward Lee Pitts
Edward Lee Pitts

Lee teaches journalism at Dordt College in Sioux Center, Iowa, and is the associate dean of the World Journalism Institute.


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