How the Presidential Election Might Change Supreme Court

Supreme Court, the Forgotten Issue of Presidential Campaign

During a potential second term, if the president has the opportunity to replace one of the justices appointed to the bench by a Republican president, he could establish a majority liberal block with the new nominee joining Ginsburg, Breyer, Justice Sonia Sotomayor and Justice Elena Kagan.

"It's clear at the very least we could see a return to the liberal judicial activism of the Warren Court," says Curt Levey of the conservative Committee for Justice. "It would affect issues from abortion--the return of partial birth abortion ---almost surely a constitutional right to gay marriage and a reversal of the court's ruling that individuals have the right to possess fire arms. It would be a removal of basically all limits on affirmative action and a reversal of Citizens United," he said, referring to the court's landmark decision which said the government cannot restrict political spending by corporations and unions in elections.

Who would be potential candidates for Obama to consider? Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia was a recent top contender. Tom Goldstein, publisher of the popular Scotusblog, speculates that the president could continue the trend and nominate another woman, Kamala Harris, the attorney general of California.

Of course a Supreme Court justice's vote does not always correspond to the views of the nominating president. So far, however, Obama's nominees have been consistent liberal votes, and Romney has vowed on his web site to nominate "judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito."

The next president will also have the ability to shape the federal judiciary by nominating lower court judges.

"That's important because the Supreme Court only decides a small number in a year. It misses many of the big issues. Even on the big issues it reaches, it only gives broad guidance and the lower courts have to fill in the details," says Levey.

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