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Supreme Court Picks Hike Stakes In Election Fight

From Day­ton Dai­ly News - The win­ner of the pres­i­den­tial elec­tion could name as many as three U.S. Supreme Court jus­tices, which could re-shape the court ide­o­log­i­cal­ly in a man­ner not seen since Pres­i­dent Ronald Rea­gan named three con­ser­v­a­tive jus­tices in the 1980s.

Although legal schol­ars warn in this deeply polar­ized coun­try any nom­i­na­tion will pro­voke an acri­mo­nious con­fir­ma­tion bat­tle in the U.S. Sen­ate, a Pres­i­dent Hillary Clin­ton could nudge the court to the polit­i­cal left while a Pres­i­dent Don­ald Trump like­ly would elbow it right.

With the death last Feb­ru­ary of Jus­tice Antonin Scalia, the eight-mem­ber court already tilts left on abor­tion rights, affir­ma­tive action and same-sex mar­riage. But on crim­i­nal jus­tice issues and gun rights, the jus­tices will remain deeply divid­ed until the Sen­ate con­firms a replace­ment for Scalia.

Pres­i­dent Barack Oba­ma last March nom­i­nat­ed fed­er­al appeals court Judge Mer­rick Gar­land to replace Scalia, a con­ser­v­a­tive icon. But Sen­ate Repub­li­cans have refused to sched­ule a con­fir­ma­tion vote, say­ing the next pres­i­dent should fill the vacan­cy.

Last­ing reper­cus­sions’

The court is real­ly impor­tant in this elec­tion, but main­ly because there is a poten­tial for get­ting three seats and because they serve so long, it will have long last­ing reper­cus­sions,” said Susan Low Bloch, a pro­fes­sor of law at George­town Uni­ver­si­ty and for­mer law clerk to the late Jus­tice Thur­good Mar­shall.

Christo­pher Walk­er, a pro­fes­sor of law at Ohio State Uni­ver­si­ty, said, “There is a lot at stake” in the pres­i­den­tial elec­tion, adding “even a Jus­tice Gar­land would change the bal­ance of the court.”

Both sides are vow­ing intense fights. At this summer’s Demo­c­ra­t­ic Nation­al Con­ven­tion in Philadel­phia, Dawn Laguens, exec­u­tive vice pres­i­dent of Planned Par­ent­hood, warned Ohio del­e­gates the next pres­i­dent will “shape the court not just for one pres­i­den­tial term, but for 40 years.”

Abor­tion rights’ oppo­nents are equal­ly as alarmed, with Michael Gonidakis, pres­i­dent of the Ohio Right to Life, say­ing “this elec­tion is tru­ly all about the Supreme Court and which par­ty selects those judges.”

Abor­tion rights are but one of an array of issues that will wind their way to the court. The jus­tices in the next few years almost cer­tain­ly will have to con­sid­er cas­es on the rights of gun own­ers, sep­a­ra­tion of church and state, and the pow­er of the pres­i­dent to side­step Con­gress on exec­u­tive orders.

Some legal schol­ars dis­miss the fears as too omi­nous. Richard Primus, pro­fes­sor of law at the Uni­ver­si­ty of Michi­gan, said that “if you look at the report­ing in elec­tion years going back half-a-dozen cycles, you find every sin­gle time peo­ple say the future of Supreme Court is at stake in this elec­tion.”

Instead, Primus said the out­come of Sen­ate elec­tions may have as much impact as the next pres­i­dent. Even if Clin­ton wins and Democ­rats seize con­trol of the Sen­ate, just 41 Repub­li­cans can use a fil­i­buster to block any of her nom­i­nees.

For the past few months we have had an unprece­dent­ed sit­u­a­tion where the Sen­ate has refused to act on a nom­i­nee,” Primus said. “Many peo­ple oper­ate under the assump­tion that after elec­tion the Sen­ate will act, but I don’t know why we should assume that.”

Aging court

Among cur­rent jus­tices, Ruth Bad­er Gins­burg is 83, Antho­ny Kennedy is 80, and Stephen Brey­er is 78. Although none has even hint­ed at retire­ment, they are con­sid­er­ably old­er than the con­ser­v­a­tive bloc head­ed by Chief Jus­tice John Roberts, 61, and Jus­tices Clarence Thomas, 68, and Samuel Ali­to, 66.

Amer­i­can pres­i­dents often have been flab­ber­gast­ed that their judi­cial nom­i­nees rule dif­fer­ent­ly than expect­ed.

Pres­i­dent Dwight Eisen­how­er had no idea he was ush­er­ing in the nation’s most lib­er­al court when he tapped Cal­i­for­nia Gov. Earl War­ren to be chief jus­tice and William Bren­nan as an asso­ciate jus­tice, although leg­end has it Eisen­how­er grum­bled he “made two mis­takes” as pres­i­dent “and they are both sit­ting on the Supreme Court.”

But in the past two decades, White House advis­ers have metic­u­lous­ly screened ide­o­log­i­cal views of nom­i­nees, opt­ing for fed­er­al appeals’ court judges who had lengthy records of their rul­ings. Sev­en cur­rent jus­tices served on the fed­er­al appeals bench while Gar­land is a mem­ber of the U.S. Court of Appeals for the Dis­trict of Colum­bia.

As a result, today’s con­fir­ma­tion bat­tles are unruly brawls com­pared to the more gen­teel dis­putes of the 1950s and 1960s. The rare excep­tion was a Sen­ate Repub­li­can fil­i­buster in 1968 to pre­vent Jus­tice Abe For­t­as from becom­ing chief jus­tice, fol­lowed by the oblig­a­tory pay­back when Sen­ate Democ­rats in 1969 reject­ed Pres­i­dent Richard Nixon’s Supreme Court nom­i­na­tion of Judge Clement Haynsworth.

The tit-for-tat of 1968 looks like the Mar­quess of Queens­bury rules com­pared to the dys­func­tion now,” said Primus.

Oppos­ing views

Trump is pledg­ing to nom­i­nate staunch con­ser­v­a­tives, telling radio host Mike Gal­lagher in June that “even if you dis­like Don­ald Trump, I’m going to put great con­ser­v­a­tive jus­tices on.”

Last May, Trump went so far as to unveil a list of poten­tial nom­i­nees such as fed­er­al appeals court judges Thomas Hardi­man of Penn­syl­va­nia; William H. Pry­or, Jr. of Alaba­ma, and Diane Sykes of Wis­con­sin.

Clin­ton has made no secret of the kind of jus­tices she would nom­i­nate, sug­gest­ing any nom­i­nee would have to have been a sup­port­er of abor­tion rights and oppose dis­crim­i­na­tion based on sex­u­al ori­en­ta­tion.

She like­ly would con­sid­er Gar­land; fed­er­al appeals court judges Sri Srini­vasan of Wash­ing­ton, D.C.; Jacque­line Nguyen of Cal­i­for­nia, and Jane Kel­ly of St. Louis.

It still looks pret­ty unlike­ly the Democ­rats will cap­ture the Sen­ate,” Walk­er said, but if Democ­rats did, he said “a Pres­i­dent Clin­ton would come in with a pret­ty strong man­date,” pre­dict­ing “Clin­ton would be quite aggres­sive in shap­ing her lega­cy.”

Yet there are tan­ta­liz­ing hints that if Clin­ton wins, Sen­ate Repub­li­cans will con­firm Gar­land in a Decem­ber ses­sion, with Bloch say­ing “she’s not going to name some­one more con­ser­v­a­tive than Gar­land, so I don’t know why any­one would wait to see what she would do.”

Arizona Republican candidate for Attorney General Mark Brnovich talks to supporters at the Republican election night party Tuesday, Nov. 4, 2014, in Phoenix. (AP Photo/Ross D. Franklin)
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ER1C ☠

ER1C ☠

Dedicated Second Amendment Advocate, At-Home Gunsmith, Designer, Blogger, Video Guy, Author, Business Owner & ReloadOne Member.

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