Looking ahead to Justice Antonin Scalia's retirement.

The law, lawyers, and the court.
April 12 2010 3:55 PM

Scalia's Retirement Party

Looking ahead to a conservative vacancy can help the Democrats at the polls.

Antonin Scalia. Click image to expand.
Antonin Scalia

Headlines blare that a battle looms over the nomination of a replacement for Supreme Court Justice John Paul Stevens—a battle, likely to get ugly, in which Republicans have not ruled out a filibuster. Don't believe it. Insiders like Tom Goldstein and Nina Totenberg expect no real battle, barring some unforeseen revelation about President Obama's nominee.

Obama is using the Supreme Court to position himself for re-election in 2012 not with the Justice Kagan-Wood-Garland choice of 2010 but by raising the specter of the retirement of 76-year-old Justice Antonin Scalia after the 2012 presidential election. The court's recent Citizens United decision, striking down limits on corporate election spending, has been deeply unpopular, providing an opening for him to run against the increasingly conservative Court. It wouldn't hurt the president if the court soon decided a few more 5-4 unpopular decisions, so that the stakes of a conservative Justice retirement are ever clearer to Obama's supporters on the left.

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Before turning to the 2012 ramifications, let's clear the brush about the nomination to replace Justice Stevens. Barring a bombshell, there will be no filibuster. Democrats and Republicans have mastered the Kabuki dance: The president picks a nominee who has been cautious enough on contested social issues so as not to be plausibly characterized as outside the mainstream. Senators from the opposition party complain that the nominee has not been forthcoming, or is ideologically radical; staff digs for dirt on the nominee's past but finds none. Senators from the president's party rally around the nominee. During the confirmation hearings, the nominee gives milquetoast, noncommittal answers, and comes across as likeable enough with a heartfelt personal narrative. The opposing senators decline to filibuster. The nominee joins the court.

So it has been with Roberts, Alito, and Sotomayor, and so it probably will be the next nominee. Democrats need only one Republican senator to avert a filibuster, and they will find Sen. Orrin Hatch of Utah or Sen. Olympia Snowe of Maine (and probably a bunch more) likely to allow a vote on a competent nominee who has stayed out of trouble. Republicans found enough Democrats to block a filibuster of Justice Alito, and his nomination actually moved the court to the right. This nomination won't move the court to the left at all.

Given the steps of the Kabuki dance, it is no wonder that Solicitor General Elena Kagan is one of the supposed frontrunners for the Stevens seat. She has a stellar résumé, and conservatives have found almost nothing to criticize in her record on abortion or gun rights. (She may well be a reliable liberal vote on these issues, but there won't be a long enough paper trail on these controversial issues to scuttle her.) The one potential wrinkle is her support of gay rights, but these days, that issue hardly seems enough to stop her nomination.

So Obama can rest pretty easy about this nomination. He probably will not choose to spend his political capital on a bold liberal nominee who would please the left wing of the Democratic Party. And then he can look ahead to how the Supreme Court can still figure prominently in his re-election campaign for 2012.

It was no accident that the president called out the Supreme Court at the State of the Union, as the justices sat before him, on the controversial decision in Citizens United opening up the corporate spending spigot. It was another Citizens United jab when Obama declared in a Rose Garden statement, upon Justice Stevens' retirement announcement, that he wants a justice who "knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens." The president is actively running against the Supreme Court.

Traditionally, this is Republican territory—they have done a better job running against the courts than the Democrats. In part, that's because of the spate of liberal decisions beginning with the Warren Court in the 1960s, many extended or not fully reversed by the Burger and Rehnquist Courts. Republicans calculated that the Court was to the left of public opinion, and since Nixon, they have energized their base by running against it.

But now the Court has taken a sharp turn to the right on abortion, gun control, and campaign finance, and the left is starting to pay more attention. In the few important recent cases where the Court held steady rather than tacking right, such as in the Guantanamo enemy combatant and gay rights cases, Justice Stevens' ability to persuade Justice Kennedy made the difference. Stevens' departure will diminish the chances of a Kennedy-left majority of five.

Last year the Court came pretty close to striking down a major portion of the Voting Rights Act: With new voting rights cases on their way, a 5-4 decision striking the law down could come before 2012. There could also be new conservative rulings on abortion, gun control, and even the power of Congress to pass health care reform. Each conservative ruling before 2012 could help President Obama.

Kennedy and the Court's four stalwart conservatives—Alito, Roberts, Scalia, and Thomas—will almost certainly remain through Obama's first term. But things get much more uncertain after 2012. By 2016, both Justice Scalia and Justice Kennedy will turn 80.* It is certainly possible that they will stay past the 2016 elections—after all, Justice Stevens is pushing 90—but who knows?

President Obama's political task, three years from now, will be to convince the country that he, not a Republican president, should make that potential appointment. The point isn't to show that he would move the Court leftward if re-elected in 2012—he'd probably be better off sending more moderate signals, which is another reason not to expect him to choose a strong liberal to fill Stevens' seat. Obama should instead stress that if a Republican wins in 2012, Scalia and Kennedy will probably retire. That would give the new Republican president the chance to entrench the five-justice Republican majority for decades—and to cement it, by replacing Kennedy with a wholly reliable right-wing vote. That's the Supreme Court script for the Democrats in 2012.

Correction, April 3, 2012: This article originally stated that Justice Kennedy will be 78 in 2016. He will be 80. (Return to the corrected sentence.)

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and is writing a book on campaign finance and political equality. Follow him on Twitter.

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