The Election’s Effect on the Judiciary

Posted by on Nov 7, 2012 in Updates

Although the presidential candidates rarely discussed it, much ink has been spilled in recent months over the effect that the presidential election would have on the Supreme Court. Although often overstated, the effect is significant. To be sure, Justice Ginsburg is likely to step down during the next four years. Given Obama’s tendency to appoint fairly young justices, if Justice Breyer, 74, were to retire along with Ginsburg in the next four years, President Obama could install a sold liberal bloc of 4 justices that will all likely remain on the Court for decades. Had a Republican president replaced Ginsburg, he could have ensured a more robust conservative majority immune to the defection of an individual Republican appointee in a particular case. Perhaps Roe v. Wade would be overturned. However, although Obama’s reelection constitutes a lost opportunity for conservatives, it really just means that the status quo will remain in place. Justice Scalia, 76 shows no signs of major health issues, and has indicated he would not want to be replaced by someone who “sets about undoing everything I’ve tried to do for 25 years.” Justice Kennedy is also 76, but will likely want to remain on the Court beyond 2016 as well.
The major overlooked effect of the president’s reelection on the judiciary, however, is the effect it will have on the appellate courts. Although the Supreme Court remained fairly split, Republicans had changed the complexion of the courts of appeal. According to the Washington Post, by 2008, Republican-appointed judges constituted majorities on 10 of the circuit courts and Republican-appointed judges were represented in equal numbers as Democratic appointees on two others. But although Republicans controlled the White House for 20 of the 28 years between 1981 and 2009, by the end of 2016 the Democrats will have controlled the White House for 16 of the last 24 years. Although there are 179 circuit court judges (including senior judges), there are currently 15 circuit court vacancies. Numerous additional vacancies will undoubtedly arise over the next four years. Given that most of the nation’s legal battles take place at the circuit level, this is not insignificant.