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The Next Justices

September 8, 2015

By Randy Barnett and Josh Blackman

When Chief Justice John Roberts administers the oath of office to the next president, he will be flanked by three, and almost four, octogenarians: Justices Ruth Bader Ginsburg (83), Antonin Scalia (80), Anthony Kennedy (80), and Stephen Breyer (77). The next president will likely have the opportunity to appoint a replacement for one, two, three, or maybe even four of those justices. These decisions will reshape the Court and how it reads the Constitution for decades to come. Republican presidential candidates will likely pledge to appoint “constitutional conservatives” to the bench—which ought to mean judges who will be constrained by its original meaning. However, GOP presidents have filled 12 out of 18 Supreme Court vacancies over the past half-century, with disappointing results. This track record teaches five important lessons that should guide future nominations.

1. Bruising confirmation battles are worth the political capital for a lifetime appointment

Presidencies last four to eight years. A Supreme Court appointment can last three decades. Long after the names Robert Bork and Douglas Ginsburg faded from the zeitgeist, Anthony Kennedy continues to have an oversized impact on our society. President Reagan initially nominated Bork and then Ginsburg to replace the retiring Justice Lewis Powell in 1987, but after the political process chewed up both nominees, the administration turned to a moderate circuit court judge with a thin public record from Sacramento. Anthony Kennedy was easily confirmed, 97-0. Placating Joe Biden, who chaired the Senate Judiciary Committee, irreparably altered our constitutional order.

President George H. W. Bush made a similar, but even worse choice three years later. Faced with a once-in-a-generation opportunity to replace liberal lion Justice William Brennan and thereby alter the balance of the Court, Bush faltered. Instead of girding for battle and burning the political capital for what would have been a brutal hearing—a preview of what would happen to Clarence Thomas a year later—Bush punted. On the recommendation of Warren Rudman and John Sununu, he quickly selected First Circuit judge David Souter. The “stealth candidate” was easily confirmed by a vote of 90-9. He would become a solid member of the Court’s liberal bloc, retiring six months into the Obama presidency (at the relatively young age of 69), opening his seat for the nomination of Sonia Sotomayor.

Read the full article at The Weekly Standard: The Next Justices

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