Ok, so the nomination of Elena Kagan to replace retired Justice John Paul Stevens hasn’t exactly made for sensational headlines. That’s because the replacement of a Supreme Court justice by another with similar ideological views and judicial philosophies doesn’t really make for a sexy story.
But what if a conservative justice (or even the more moderate so-called swing voter, Justice Anthony Kennedy) were to be replaced by President Barack Obama? Particularly if Republicans earn more seats in the Senate at the midterm elections?
Now, that’d be a barn burner!
That is the scenario posed by CBS News’ Jeff Greenfield.
Greenfield notes that most of the Court’s most recent controversial rulings – such as those on gun rights, late-term abortions, corporate campaign spending – were decided by ideologically-split 5-4 votes. So if a Democratic president named a replacement for a conservative justice, he could create a dramatic shift in power on the Court.
“And that means that the confirmation struggle is likely to go ‘nuclear,’” Greenfield writes.
Not only will such a nomination produce heated arguments in the Senate over ideological differences and the use of the filibuster to block a nominee, Greenfield writes, Senate Republicans might even suggest calling the whole thing off.
“We may even hear conservative academics argue, as one prominent liberal law school professor did after the disputed 2000 election, that the Congress should simply leave the position vacant until voters decide in 2012 who should be nominating justices,” Greenfield writes. “Indeed, the closer we are to the 2012 election when and if a conservative justice retires, the more intense the political fight will be.”
Now, considering most of the justices in Court’s so-called conservative bloc are pretty young, seemingly healthy, and admittedly very happy with their jobs, this scenario is probably not terribly likely.
For the record, Chief Justice John G. Roberts, Jr. is 55, Justices Antonin Scalia and Kennedy are 74, Justice Clarence Thomas is 62 and Justice Samuel Alito, Jr. is 60.