Undecided?

9Justices

Back in 2004, I never really understood how people could be undecided in the Presidential election.  George W. Bush and John Kerry were two very different choices. Today, regardless of whether the Democratic nominee is Barack Obama or Hillary Clinton, the choice between a president who is a Democrat or a Republican is pretty stark.

Sure, there are tons of issues at the heart of this differentiation.  The environment, the war, the economy …  The list goes on. But one significant factor is the Supreme Court. Unfortunately, the Supreme Court is cloaked in mystery.

There is no doubt, however, that recent nominations to the Court has made it decidedly more conservative. If you like the rightward shift, vote for McCain and a generation of conservative rulings are sure to follow. If you don’t, vote for either Democrat.

You may think you’ve probably heard this argument in past presidential elections — and not much has changed.  In some ways that’s right.  But that has largely to do with who has left the court recently (Rehnquist and O’Connor) and who replaced them (Roberts and Alito).

But a couple of things are different now.  First, Presidents are getting better at picking justices who will rule as expected.  Clarence Thomas, appointed by Bush1, has been reliably right.  Ruth Bader Ginsburg and Stephen Breyer, appointed by Clinton,  have been reliably left.  And John Roberts and Samuel Alito, appointed by Bush2, while still new appear to be reliably on the right.

So it really comes down to who will replace John Paul Stevens (who is perhaps the most liberal on the court — though appointed by Gerald Ford) will be 88 when a new president takes office.  And Ruth Bader Ginsburg will be 75 on January 20, 2009.  Right now the court is split, but tips to the right with Anthony Kennedy in the middle as the swing vote.  If a Democrat is elected, this very precarious balance is likely to remain because presumably a Democrat would replace these two justices with appointees who vote much like Stevens and Ginsburg. If John McCain wins (and Stevens and Ginsburg do, in fact, leave the court), the make-up of the court will be decidedly conservative for a generation to come.

Given how many issues that affect our lives come before the Supreme Court, the stakes are high for either side.  If you are interested in reading a little more, there’s a good article by Anna Quindlen in Newsweek.  And if you are interested in reading a lot more, I would recommend Jeffrey Toobin’s book, The Nine.

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