PERRYSCOPE

Perry Diaz
Pendulum of Justice

The most important act of the President of the United States is the appointment of Supreme Court justices. And the reason is that once appointed to the High Court, a justice, like the President, can only be removed by impeachment by the House of Representative and conviction by the Senate.

However, the big difference is that the President serves no more than two four-year terms of office while a Supreme Court justice serves for life. It is not uncommon for a justice to serve 25 years or more on the Supreme Court.

With the announcement by Associate Justice David H. Souter a few weeks ago that he will be retiring after 18 years on the High Court, President Barack Obama will have his first opportunity to appoint a justice on the Supreme Court. However, Souter’s replacement would not change the political make-up of the High Court because Souter -- who was appointed by President George H.W. Bush -- is pro-choice and had consistently voted with the liberal bloc on the High Court. In other words, the Supreme Court would continue its centrist course with the departure of Souter.

The senior member of the Supreme Court is 89-year old Associate Justice John Paul Stevens who was appointed by President Gerald Ford in 1975. He was against affirmative action and racial quota system early in his tenure. However, he started moving to the left on issues such as abortion rights and gay rights. In 2003, a statistical analysis of Supreme Court voting patterns has placed him in the liberal bloc and the High Court’s “most liberal member.”

The junior member of the Supreme Court is 59-year old Associate Justice Samuel Alito who was appointed by President George W. Bush in January 2006. Alito is considered a “fairly conservative” justice with a “libertarian streak” which he has demonstrated with votes on First Amendment issues.

The youngest on the bench is 54-year old Chief Justice John G. Roberts, Jr. who was appointed by President George W. Bush in September 2005. Known as a “judicial conservative,” Roberts could be on the High Court for the next 25 years and lead the conservative bloc in a court that could swing to the left during the Obama presidency.

Associate Justice Anthony M. Kennedy, 72, has been on the High Court for 21 years. Appointed by President Ronald Reagan in 1988, Kennedy has become the “swing vote” on the High Court. His vote has became pivotal in a lot of high-profile 5-4 decisions in which he sided more with the liberal bloc. Known for his judicial independence, Kennedy once said, “The law makes a promise -- neutrality. If the promise gets broken, the law as we know it ceases to exist.”

The Supreme Court’s most conservative jurists are Associate Justices Antonin G. Scalia and Clarence Thomas. Scalia, 73, was appointed by President Ronald Reagan in 1986. He is considered to be a “core member” of the conservative bloc.

Thomas, an African-American, was appointed by President George H.W. Bush in 1991 at the age of 43. Thomas, the other “core member” of the conservative bloc, replaced Associate Justice Thurgood Marshall, also an African-American and was one of the most liberal justices on the High Court. At 60, Thomas could be on the High Court for another 25 years.

The two other Associate Justices are Ruth Bader Ginsburg and Stephen G. Breyer who were both appointed by President Bill Clinton. Ginsburg, 76, was appointed in 1993 and is the first Jewish woman to serve on the High Court and currently its only woman. Ginsburg has supported abortion rights and consistently voted with the liberal bloc. She is often called the “liberal voice” on the Supreme Court.

Breyer, 70, was appointed by President Bill Clinton in 1994 and is identified with the liberal bloc. However, he is known as a “judicial moderate.” Breyer is perceived as a “coalition builder” because he has the knack for positioning himself in the political center and then convince his peers to his way of thinking.

With four liberals (Breyer, Ginsburg, Stevens, and Souter) and four conservatives (Scalia, Thomas, Roberts, and Alito), Kennedy continues to be the crucial swing vote on the High Court. Assuming that Obama’s replacement for Souter would be another liberal, the bench would continue to stay in the center with the pendulum of justice swinging slightly between left and right.

Would the pendulum swing to the far left during the presidency of Obama? Assuming that Obama would be reelected to another four-year term in 2012, Stevens would be 97 years old by the time Obama leaves office in 2016. However, it would be likely that Stevens would retire within the next eight years; thus, giving Obama an opportunity to appoint another justice with liberal credentials. But the political composition of the Supreme Court would still be 4-4 with Kennedy still holding the swing vote.

The only time that the liberal bloc would increase in number would be when either Scalia, Thomas, Roberts or Alito would leave the bench. Well, Thomas, Alito, and Roberts would still be in their sixties while Scalia would be in his early eighties together with Kennedy.

So by just basing it on age and not life expectancy or longevity, all the remaining justices would still be on the bench during Obama’s first term. Assuming that Obama would be reelected to a second term in 2012, Scalia and Kennedy will be in their late seventies by then. If Scalia or Kennedy would leave and Obama would appoint a liberal justice, the pendulum of justice would swing to the left with a slim majority of five liberals. However, if both of them would leave and be replaced by two tried and tested liberal jurists, the liberal bloc would have a safe 6-3 majority over the conservatives and would follow a liberal course just like the Warren Court did in the 1950s and 1960s.

On the other hand, if a Republican president wins in 2012, the Supreme Court will swing to the right and could pursue the repeal of Roe v. Wade. Thus, the presidential elections in 2012 would be crucial on how the pendulum of justice would swing: to the right if a Republican wins and to the left if a Democrat wins.

It is no wonder then that the Republican Party has not let up on its attack on Obama particularly on his stand on abortion. The recent commencement exercises at Notre Dame was the first salvo in the pro-life movement’s assault on Obama. And the Senate confirmation hearing of Souter’s replacement on the Supreme Court would be the first battle against the pro-choice forces during Obama’s presidency. (PerryDiaz@gmail. com)