With the next president poised to pick which side controls the evenly split U.S. Supreme Court, a two-term victory by Hillary Rodham Clinton would assure that liberals would run the judicial branch until at least 2041 and likely well past 2050, a situation that has even #NeverTrump Republicans ready to fight her.
The court is split 4-4, and the next president will fill the seat opened by the February death of conservative Justice Antonin Scalia. That seat alone will give either the liberals or conservatives immediate majority control of the court.
But other retirements are expected soon after the 2017 inauguration. Justice Anthony Kennedy, who was nominated by President Ronald Reagan and is often the court’s swing vote, will be 80. Liberal Ruth Bader Ginsburg will be 83 and fellow liberal Stephen Breyer will be 78. Conservative Clarence Thomas would be 77 at the end of a two-term Clinton presidency, one year shy of the average age a justice retires.
That could leave the court with a liberal majority of six or seven justices to two or three conservatives.
Justices serve an average of 16 years, according to a Supreme Court fact sheet. So if Clinton picked justices in her last year in office, her picks, and those appointed by President Obama, would serve to 2041.
But she could follow Obama’s practice of appointing younger judges, such as Justice Elena Kagan, who was 50 when she joined the court. If judges that young are nominated and served until the average retirement age of 78, liberal judges could be running the Supreme Court in 2052.
“Yes, that is not an unreasonable prediction,” said Leonard Leo, executive vice president of the Federalist Society. “I think you are looking at two clear seats that would switch parties: Scalia and Kennedy. That puts the number of Democrats to six if you include a Ginsburg replacement, Kagan, Sotomayor, Breyer or his replacement,” he added.
What’s more, judges appointed to lower courts by Obama and Clinton would serve for long periods and likely give a liberal bent to the federal district and appeals courts, according to experts. Between Obama and Clinton, some 1,300 of 3,680 judgeships could be filled if Obama’s current average number of picks holds.
Several groups focused on the court and Constitution, such as the National Rifle Association and pro-family and anti-abortion groups, are planning expensive fall campaigns to draw attention to the issue.
“All the chips are on the table in this election because the impact is who gets the Supreme Court,” said NRA President Allan D. Cors.
Paul Bedard, the Washington Examiner’s “Washington Secrets” columnist, can be contacted at [email protected]
