Speculation Begins to Build About an Obama Court

(Feb. 5) – With so much else going on, there's been little time during the first year of the Obama administration to ask a perennial question of presidential politics: What's likely to happen to the Supreme Court?

ABC News weighed in Thursday with speculation that two liberal Supreme Court justices – John Paul Stevens and Ruth Bader Ginsburg – could step down during Obama's first term. Stevens, 89, didn't hire a full team of clerks for the spring. He also told reporters, "This can't be news. I'm not a kid." And Ginsburg, 76, has undergone surgery for pancreatic cancer.

The president has already made one appointment to the Supreme Court – Sonia Sotomayor, who replaced David Souter, a Republican appointee (George H.W. Bush) who nonetheless often voted alongside liberal justices.

But retirements of Ginsburg and Stevens and nominations of presumably liberal replacements will not alter the balance of the Roberts court, whose conservative leanings were reflected in a recent 5-4 decision to strike down decades-old limits on corporate spending in elections. (Obama criticized the court for this in his State of the Union address.)

That kind of change is only likely if at least one of the following five justices leaves: Chief Justice John Roberts, 55; Antonin Scalia, 73; Anthony Kennedy, 73; Clarence Thomas, 61; and Samuel Alito, 59. Obviously, the chances of a departure increase if Obama serves a second term.

In the past couple of generations, the average age of retirement for Supreme Court justices has jumped almost a decade. Before 1970, the average age for retirement was 68. Now it's 79. By this measure, Reagan appointees Scalia and Kennedy are the most likely conservatives to leave the court, though judges often put off stepping down as long as the opposite party controls the presidency.

Liberals would most welcome the departure of Scalia, the guiding mind behind the court's conservatism, but neither he nor Kennedy (who is a less stalwart conservative on some issues) has given any indication they're likely to step down.

Still, that hasn't stopped judicial observers from speculating about what an Obama court might look like.

"An Obama judiciary would be a plainly liberal one," writes Terry Eastland of the conservative Weekly Standard magazine. "Not surprisingly, Obama has endorsed the idea of a 'living Constitution,' one judges adapt to meet the needs of a changing society. A living Constitution has its analogue in what might be called a 'living U.S. Code,' by which judges rewrite federal statutes they regard as somehow deficient, which for Obama could mean statutes having an adverse impact on people 'who need protection.' Obama's model justice is Earl Warren, who saw the role of the court as that of doing justice, regardless of what the law at issue in a case might say."

Any Obama appointee is also certain to support a woman's right to abortion, which has become among the most contentious of issues in judicial confirmation proceedings.

ABC identified several possible candidates Obama could pick for the Supreme Court: Elena Kagan, the president's solicitor general and a constitutional scholar; Judge Diane Wood, who was nominated to the U.S. Court of Appeals for the 7th Circuit by President Clinton; and Homeland Security Secretary Janet Napolitano.

Buzz will accompany any appointment, as it increasingly does in these partisan times. "The most important thing that has changed," says Stuart Taylor of the National Journal, "is the downward spiral of partisanship in judicial nominations. It's reached a point where either party is going to make a fight on almost anyone unless the candidate is displeasing to the base of the president's party." (As a senator, Obama opposed the nominations of Roberts and Alito.)

But only if it's a conservative who steps down will an appointment have history-changing significance.