It's the Supreme Court, Stupid

The fact is that after the next Presidential election, the youngest or oldest president in US History will quite likely be nominating some Supreme Court Justices.

The three justices most likely to go during the next four to eight years are:

1) John Paul Stevens, born April 20, 1920, is currently the Court’s most senior Associate Justice. Stevens joined the Court in 1975 and is the oldest and longest serving incumbent member of the Court. He was appointed to the court by President Gerald R. Ford. is considered to be on the liberal side of the court. He is also the only current Justice to have served on the Burger Court, best remembered for its ruling in Roe v. Wade.
2) Ruth Joan Bader Ginsburg, born March 15, 1933, was appointed by President William J. Clinton. Ginsburg is considered to be one of the Court's two most liberal justices. Having spent 13 years as a federal judge, but not being a career jurist, she is unusual as a Supreme Court justice for having spent a portion of her career as an advocate for the equal citizenship status of women and men as a constitutional principle. She engaged in advocacy as a volunteer lawyer for the ACLU and in the 1970s, was a member of the ACLU's Board and one of its General Counsel. She served as a professor at Rutgers University School of Law and Columbia Law School. Immediately before her appointment she was a federal judge on the United States Court of Appeals for the District of Columbia Circuit. She is the second woman and the first Jewish woman to serve on the United States Supreme Court. In 2007, Forbes magazine rated her as the 20th most powerful woman in the world, and as the most powerful female lawyer in the world.
3) David Hackett Souter, born September 17, 1939 has been an Associate Justice since 1990. He filled the seat vacated by William J. Brennan. Souter was appointed to the Court by President George H. W. Bush, though he usually votes with the liberal wing, yet not as consistently as his predecessor. Souter currently ranks fourth in seniority among the Associate Justices. A symbolic turning point for Souter came in 1992 in Plannned Parenthood v. Casey. In this case the Court reaffirmed the essential holding in Roe v. Wade. Both Souter and Anthony Kennedy considered overturning Roe and upholding all the restrictions at issue in Casey. However, after consulting with O'Connor, the three (who came to be known as the "troika") developed a joint opinion which upheld all the restrictions in the Casey case except the mandatory notification of a husband while asserting the essential holding of Roe, that a right to an abortion is protected by the Constitution. Casey was decided by a 5 to 4 vote. Although appointed by a Republican president, and thus expected to be conservative Souter is now considered part of the liberal wing of the Court.

Here is the link to the present sitting Court.(copy and paste)
http://www.supremecourtus.gov/about/members.pdf

Here is an interesting article.
“Where have all the Politicians gone? Recruiting for the modern SUPREME COURT.”
By Terri L. Peretti
http://www.ajs.org/ajs/publications/Judicature_PDFs/913/Peretti_913.pdf
In summary, this interesting and well written article looks at how the Supreme Court nominees have shifted over the years. In 1954 the court was completely comprised of persons who had previously held elective office and other political positions.

Currently the Supreme Court is made up of only appointees who previously served on the United States Court of Appeals. (See the pictures on page 113 of the article.) This shift has been so pervasive that some folks think this federal judicial experience is a prerequisite to appointment to the Supreme Court. It is not. This trend in appointment is noted as creating a court with “striking occupational homogenity.” No current sitting justice has served in a state or national legislature, or held elective office.

“There is less politics and more law in the backgrounds of the justices than there used to be.” Id. The last time a sitting member of congress was appointed to the Court was 1945. The article notes that there have been several attempts after this but that they have all failed. Bill Clinton attempted to appoint several politicians who declined and even George W. Bush attempted with his failed appointment of Harriet Miers. The article suggests that perhaps political appointments like Harriet’s are made at “some peril.”

Judicial experience may also equate with Republican desires for less political activism and more strict construction than the Court saw in the 60s and 70s. where liberal activism was more prominent than we’d see with the current Court.

As of 2008 Supreme Court Associate Justices make $208,100 per year and the Chief Justice makes $217,400.

Due to conflicts with cases they also are rather limited in what they can do with their money. If they own stock in Microsoft, they generally have to excuse themselves from a case involving that company. This could be yet another reason why several presidential attempts to appoint politicians have been rejected by potential appointees. ‘Only future Democratic elections will allow us to judge how partisan or universal is the new norm of prior judicial service.’ Id. at p. 116.

Major decisions are recently being written by a majority of five, with some angry dissenters. The most recent examples of this are the cases of Boumediene v. Bush and Al-Odah v. U.S.

In these cases the Court ruled that for the third time in four years, President G.W. Bush had violated a basic precept of the American legal system. The vote was close. One vote made the difference and the dissent was bitter.

The court ruled that Bush couldn't deny prisoners at Guantanamo Bay the right to challenge their detentions in federal district court simply by storing them offshore on a U.S. Military base. Some of them have been held there without charges for more than six years. I'm sure not in favor of terrorists. But, having been a prosecutor who had to file charges within hours and prosecute charges within a statute of limitations, I'd think these prosecutors could get something done in SIX YEARS. Sheesh.

Anthony Kennedy, writing for the majority held that these prisoners had the right to habeas corpus. Chief Justice Roberts, Justice Alito, Justice Scalia, and Justice Thomas all dissented. (Shock Shock)

In June 2004, Supreme Court Justice Sandra Day O'Connor wrote: "A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." Even though the gitmo detainees are not citizens, their detention by this country must afford them some due process, particularly in light of prior related court decisions (stare decisis) on this issue.

Anyway, now is the time to understand two things:
1.) If Republican John "McSame" is elected it is not likely that all of the older, more liberal members of the court will be able to hang in there for another four or eight years.

2.) Losing just one liberal Associate Justice could turn the Court over the right wing tipping point, bringing into serious jeopardy many of the decisions from which we receive basic civil rights.

This is why people, especially women who value the right to decide what they can do with their own bodies, can’t just vote for John McCain because they are angry that Hillary did not get the Democratic Party nomination. This is also why Barack Obama should send out signals now that he will try to put Hillary Clinton on the United States Supreme Court. With a Democratic Congress, he should be able to pull that off.

Now is our time. It is time to give a Democratic president the chance to nominate a strong legal mind and an experienced, politically astute lawyer to the United States Supreme Court. The Court really needs someone from the real world right now. I think that person could and should be Hillary Clinton.

Further, quoting Justice Frankfurter, the Peretti article notes that “without qualification…the correlation between prior judicial experience and fitness for the Supreme Court is zero.” Id at p. 117.

Additionally, current justices have not had “real world” legal experience. Not only have the current justices not “practiced law” off of the bench only one, Souter, has actually presided over a criminal or civil trial. (!) Id. at p. 120.

This means they don’t know how to cross examine someone, they have never taken a deposition, and these justices have primarily existed in the world of academia (professors) or as appellate judges. OMG. The actual practice of law, I think brings some real world mind set and thinking skills to a jurist. When I began research for this blog, I was surprised to learn of such a dearth of actual legal practice experience on the current court.

Peretti’s suggestion that it was the politicians on the court who created many of the civil rights and civil liberties, we find to be some of the most important precedent (stare decisis) ever created, is a point well taken. Peretti’s suggestion that law professors and appellate justices might be less effective policy makers than more politically experienced Courts of the past is also noted.

Adding justices with legislative and even white house experience would be beneficial to the court and the country. Peretti cites an article by John Dean on this issue As John Dean correctly points out, “ 'when an individual moves from branch to branch, he or she takes knowledge and experiences along...only strengthen[ing]...the system' of checks and balances. Of course, the same dynamic should occur with state legislative experience being added to the Court, enhancing its understanding of and sensitivity to issues of federalism and state power.” Id. at p. 122.

Hillary Clinton belongs on the Supreme Court.