Another plus in the November 4 election result for those of us worried about Supreme Court vacancies: John McCain won't be making nominations, as he promised, in the molds of Chief Justice John G. Roberts and Justice Samuel Alito. Those picks by President Bush have given the court two reliable conservative votes.
On the high court, presidents can never be sure of their nominations. JFK was probably surprised that Justice Byron "Whizzer" White was far more conservative on the bench than liberals expected. Similarly, President George H. W. Bush had to be stunned by how liberal Justice David Souter has been with his opinions throughout his career on the court.
We do know this: Roberts and Alito have been predictable conservatives in virtually all their opinions, following the so-called intellectual Antonin Scalia.
It wasn't talked about a lot in the campaign, but there are likely to be one or two vacancies in the next four years. Another conservative would bring a solid majority. Justice John Paul Stevens, President Ford's only nomination, has been the leading liberal voice on the court. He may retire. Justice Ruth Bader Ginsburg has been in failing health in recent years.
As a senator, Barack Obama voted against the nominations of Roberts and Alito. Both of them, but especially Alito, have joined avowed conservatives Scalia and Clarence Thomas on nearly all critical issues before the court.
Of course, abortion has been the issue that most worries those who support a woman's right to choose. As president, Obama will probably select a jurist siding with the liberals on the Roe v. Wade case.
Leave it to the Wall Street Journal editorial staff to make an incredible pitch to the president-elect on the selection of all federal judges. On November 29, the Journal said Obama should show his moderate side by renominating some judges put forward by President Bush and held up in the last Congress.
The Journal said that would send a signal that Obama would not play politics on cases coming before the high court. Nothing was said about Republican majorities playing politics on past judicial nominations.
The idea of Obama renominating some of President Bush's stalled nominations came from Sen. Mitch McConnell of Kentucky, the Republican leader in the Senate. McConnell is a master at political games, so his words won't sway Obama.
McConnell knows full well that Republicans have played that stalling game in the past far more earnestly than the Democrats when they are in the majority. Yes, both sides have done it.
The Journal writers chided Obama for his words in the Senate on voting against Roberts because of concern over his "political" philosophy. Apparently, they're shocked, shocked, shocked to think politics might come into play on selections to the court.
Obama is likely to pay strong attention to evaluations by the American Bar Association and judges he's known throughout his career in Illinois and Washington. He's a lawyer. George W. Bush isn't.
However, political considerations can always enter into the picture, and everyone but the naive among us knows it.
- Read more by John W. Mashek.
- Read more about George W. Bush.
- Read more about Supreme Court justices.