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The Supreme Court May Be The Sleeper Issue Of The 2016 Election

Bill Whalen

By Bill Whalen

Published Oct. 27, 2015

The Supreme Court May Be The Sleeper Issue Of The 2016 Election

On better days, my morning starts with an email from EMILY's List.

I signed up with the PAC created to get pro-choice Democratic women elected ("early money is like yeast"), not because I agree with the politics (I'm not a fan of single-issue litmus tests).

What attracted me was the extent to which the ladies will go to raise money. Such as: selling decks of playing cards ("deal her in"), t-shirt design contests ("a woman's place is in the White House"), plus a never-ending stream of atta-girls bucking up Hillary Clinton.

But it was a different PAC that caught my attention the other day. Ready PAC (that's the artist formerly known as Ready for Hillary) sent a missive congratulating Supreme Court Justice Ruther Bader Ginsburg for her supreme dislike of 2010's Citizens United v. Federal Election Commission. That's the decision that transformed political spending in the U.S. by ruling that campaigns donations enjoyed free-speech protection under the First Amendment, thus opening a floodgate of corporate and union money. Ginsburg calls it her "biggest disappointment" during her two-plus decades on the High Court.

My first thought, because the email was a photo of the justice with a large-lettered "thank you, Ruth Bader Ginsburg" and you couldn't tell the topic until you read further down: she's stepping down.

My second thought, after ascertaining she hadn't: When will she retire?

I thought about this often during the 2014 election, figuring that some political sneak at the White House would do his or her best to strong-arm Ginsburg into retiring. Why? Put forward a nominee to replace Ginsburg in late-summer 2014 and, if the Republican-controlled Senate took the bait and turned the confirmation hearing into a disagreement over abortion and birth control, Democrats could create another "war on women."

But that didn't play out. There was indeed plenty of speculation that Ginsburg would step down. But she told reporters she couldn't — actually, wouldn't — because, she rationalized, another liberal like her wouldn't survive a fight in the current Senate.

By that logic, Ginsburg is holding out until 2017 and the prospect of a Democratic Senate. In which case, the Supreme Court may be the biggest sleeper issue in the 2016 election.

Here's why:

Ginsburg, the eldest of the court's nine justices, is 82 and a two-time cancer survivor (along with other health-related problems). Assuming she sticks it out until the next administration, she'll turn 84 two months after the next president takes his or her oath of office.

The ages of the other eight justices in 2017:

Anthony Kennedy, 81

Antonin Scalia, 81

Stephen Breyer, 79

Clarence Thomas 69

Samuel Alito, 67

Sonia Sotomayor 63

John Roberts, 62

Elena Kagan 57


If age and ideology were the driving concerns between now and next November, one would assume that the Obama White House would do its best to convince both Ginsburg and Breyer to step aside (they're both Bill Clinton picks from over 20 years ago).

But if that doesn't happen, POTUS 45 gets those two picks, plus maybe Kennedy and Scalia to boot. That would give a Republican president a chance to make it as much as a 7-2 conservative majority (only Sotomayor and Kagan in the minority). Conversely, a Democratic president could make it a 6-3 progressive court (Thomas, Alito and Roberts (hmmm) dissenting).

In case you're curious about the last time a Supreme Court pick landed smack dab in the middle of a presidential election year, the answer is 1968.

It began with then-Chief Justice Earl Warren intention to step down — he didn't want a Nixon White House to choose his successor. So Warren went to Lyndon Johnson and put the wheels in motion.

Johnson's pick: Abe Fortas, a Supreme Court associate justice and confidante of LBJ's. And to fill Fortas' seat: an appeals court judge named Homer Thornberry.

Why Thornberry? Johnson figured that Thornberry, a fellow Texan, would placate the Senate's conservative southern Democrats (that's how old this story is — there was still such as thing as southern Democrats). And maybe Johnson felt he owed the man: Thornberry was a regular hospital visitor back in 1955 when LBJ had the heart attack that almost killed him (Thornberry rigging a dominos game in such a way as to guarantee the patient's winning).

But Johnson's scheme fell apart. Fortas became the first sitting associate justice to testify at his own confirmation hearing — his testimony only confirming suspicions that he was too close to the White House. Combined with the revelation that Fortas had made money on the side teaching a summer college course, the Senate couldn't muster the voters to invoke cloture. LBJ withdrew Fortas' nomination; Thornberry's nomination also died without a Senate vote.

A 2016 Supreme Court nomination wouldn't play out the same. A Democratic president would be at odds with conservative Republican senator from the South (remember: Texas Sen. Ted Cruz sits on the Senate Judiciary Committee).

But it would be far more theatrical than it was in 1968, before there was social media or all-news-all-day cable television.

And, thanks to all those interest groups who like to flood my inbox, maybe too much for my server to handle.

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Bill Whalen is a research fellow at the Hoover Institution, where he studies and writes on current events and political trends. In citing Whalen as one of its "top-ten" political reporters, The 1992 Media Guide said of his work: “The New York Times could trade six of its political writers for Whalen and still get a bargain.” During those years, Whalen also appeared frequently on C-SPAN, National Public Radio, and CNBC.

Reprinted from Forbes.com

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