President Obama and Mitt Romney have not made Supreme Court appointments a major issue on the campaign trail. / Pablo Martinez Monsivais, AP
WASHINGTON - The Supreme Court could be transformed by the man elected president Nov. 6, but you wouldn't know it from the campaign the candidates are waging.
Despite four justices in their 70s, a political impasse over lower-court judges and a slew of controversial social issues that could come up in the next four years, the high court has been relegated to the bench in the campaign between President Obama and Republican Mitt Romney.
The reasons are many: Democrats were satisfied with the court's ruling in June that upheld Obama's health care law. Republicans can't really criticize a court still dominated by conservatives. Most voters are more focused on jobs and the economy. And those who care deeply about judicial issues likely chose a candidate long ago. Perhaps most important, the chance that Obama or Romney could tilt the court very far in one direction or the other is remote. That's because most justices choose to retire when their party is in power, and no retirements are immediately forecast.
"The Supreme Court is a theoretical problem, not an actual problem" because there are no vacancies, says Wade Henderson of the Leadership Conference on Civil and Human Rights, a coalition of advocacy groups. But he says potential vacancies in the future, as well as a huge number of lower court vacancies, should make the judiciary more of an issue in this and future elections.
The last four court vacancies show how most presidential nominations have had a small but potentially significant impact. Obama's choices of Sonia Sotomayor and Elena Kagan solidified liberals' hold on four seats. George W. Bush's selections of John Roberts and Samuel Alito firmed up the conservative side.
The most likely opportunity for a significant change would come if Romney were elected and Justice Ruth Bader Ginsburg left during his presidency. Ginsburg is 79 and a cancer survivor. Three other justices also were born when Franklin Roosevelt was president: Conservatives Antonin Scalia and Anthony Kennedy are 76 and liberal Stephen Breyer is 74. All three are in relatively good health, however, and unlikely to step down if their party is out of power.
Curt Levey, executive director of the conservative Committee for Justice, says conservatives should not be "lulled into a false sense of security." One key opportunity for Obama could swing the court to the left. "We're more at a tipping point than we've ever been in my lifetime," he says.
Kennedy's departure would be noteworthy. Since moderate Sandra Day O'Connor's departure in 2006, he has been the most frequent swing vote. "It's going to be World War III when somebody gets to replace Anthony Kennedy," says Carrie Severino, chief counsel and policy director at the Judicial Crisis Network and a former law clerk for Justice Clarence Thomas.
Vice President Biden raised the court as an issue in his debate with Rep. Paul Ryan of Wisconsin earlier this month. "The next president will get one or two Supreme Court nominees. That's how close Roe v. Wade is," Biden said, referring to the 1973 decision that legalized abortion nationwide. "Just ask yourself: With Robert Bork being the chief adviser on the court for Mr. Romney, who do you think he's likely to appoint?"
Romney's website answers that question. "As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas and Alito," it says.
Biden led the opposition to Bork's Supreme Court nomination a quarter-century ago. The court hasn't been as high on the political agenda since.
Still, the court went through one of its most contentious terms in 2011-12, concluding with its 5-4 ruling on health care and a split decision on Arizona's immigration law. Already this term, it has heard arguments on racial preferences in college admissions; cases involving gay marriage and voting rights are expected by spring.
"I think it would greatly help the president to talk about the Supreme Court," says Nan Aron of the liberal Alliance for Justice Action Campaign. Either president's appointments "will last long after he leaves office."
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