On February 15, 2009, I wrote an article about the Supreme Court which I believe covers the situation with Judge Souter’s potential retirement. The only difference is in the second paragraph I talked about the Democrats having 58 votes. However, with the apparent result of the election in Minnesota and Arlen Spector’s (D-PA) change, the Democrats now have 60 votes; President Obama is in a position where whoever he nominates will become the next Supreme Court Judge. The only bright side from the Republican Party is that Judge Souter has turned out to be one of the more liberal judges and it is doubtful that President Obama can appoint anybody more liberal.

Article from 2/15/09 THE SUPREME COURT – THE NEXT 2 YEARS:

With the announcement about the health problems of Supreme Court Justice Ruth Bader Ginsburg, it may be time to look at the Supreme Court and what may happen in the next several years.

The Democrats in the Senate are in great shape, they have 58 votes counting Bernie Sanders of Vermont and Joe Lieberman of Connecticut. The election in Minnesota is being contested but the odds are that Al Franken, the Democrat, will eventually win the Senate seat. You add to that the potential of some of the more moderate to liberal Republicans voting with the Democrats, and the Democrats have a good chance, assuming they hold all their own, of being able to cut off debate (60 votes). This would take away the only weapon the Republicans have, the filibuster. The Judiciary Committee will have no problem moving any nominee that President Obama sends up through the committee to the floor of the Senate.

The two judges who are most likely to leave in the next several years are Justice Ruth Bader Ginsburg, now in her mid-70’s, and John Paul Stevens, in his late 80’s. A 2003 statistical analysis of Supreme Court voting patterns showed that Judge Stevens was the most liberal judge and Judge Ginsburg was the second most liberal judge. As a practical matter, no matter who President Obama appoints if those openings come about, it will be difficult to find more liberal judges.

Let’s look at the judges on the Supreme Court:

• Chief Justice John G. Roberts, Jr. was appointed by President George W. Bush, and took his seat September 29, 2005. He was born on January 27, 1955.

• Associate Judge John Paul Stevens was appointed by President Ford, and took his seat December 19, 1975. He was born on April 20, 1920.

• Associate Judge Anton Scalia was appointed by President Reagan, and took his seat September 20, 1986. He was born on March 11, 1936.
 
• Associate Judge Anthony M. Kennedy was appointed by President Reagan, and took his seat February 18, 1988. He was born on July 23, 1936.

• Associate Judge David Hackett Souter was born September 17, 1939. He was appointed by President Bush (41) on October 9, 1990.

• Clarence Thomas, Associate Judge, was born on June 23, 1948, was nominated by President Bush (41) and took his seat on October 23, 1991.

• Ruth Bader Ginsburg, Associate Judge, was born on March 15, 1933. She was appointed by President Clinton and took her seat August 10, 1993.

• Stephen G. Breyer, Associate Judge, was born on August 15, 1938. He was appointed by President Clinton, and took his seat August 3, 1994.

• Samuel Anthony Alito, Jr., Associate Judge, was born April 1, 1950. He was appointed by President George W. Bush, and took his seat January 31, 2006.

As you can see, Judge Stevens is in his late 80’s, Judge Scalia, Judge Kennedy, Judge Ginsburg, Judge Souter and Judge Breyer are in their 70’s and Judge Roberts, Judge Alito and Judge Thomas are in their mid-50’s to early 60’s. Many people who cover the Supreme Court believe that Judge Souter is the wildcard. He was appointed by a Republican President, but is considered by many to be a member of the left wing of the Court. Some people think he is the next most likely to retire. Rumors have it that he does not care for Washington that much. He has not been happy with the Court’s sometimes conservative decisions, and has apparently never viewed the job as necessarily one that will consume the remainder of his working life.

Any time there is an opening on the Supreme Court hysteria reigns supreme. The talking heads will have a wonderful time talking about what will happen or not happen to Roe v. Wade, Miranda v. Arizona, etc. Because the Democrats are in complete control and because the Justices who may depart in the next two years are extremely liberal; my guess is there won’t be much of a change in the Supreme Court. A more dramatic problem would surface if one of the conservative leaning judges – Roberts, Scalia, Thomas, or Alito left the Court. Also, if Judge Souter was replaced by an even more liberal judge, that could change the direction of the Court.

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Lou Frey represented Central Florida in the U. S. Congress from 1969 to 1979. In his last election, he received nearly 80% of the vote. He was elected one of five Republican leaders in the House of Representatives during the 93rd and 94th Congress. He served on...