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Supreme Court Justice Nominations: The Most Lasting Decision a President Can Make

OP ED:  As we come to the end of a contentious presidential campaign and at least 10% of likely voters still classify themselves as undecided, there is one vital piece of information  too many overlook. There is one decision the next president will make that will impact us for years to come – Supreme Court nominations.

Three of the current nine justices on a U.S. Supreme Court that has decided numerous significant issues by 5-4 votes over the past decade will turn 80 years of age before the 2016 presidential election. Those justices are Antonin Scalia, a leader of the court’s conservative wing, Ruth Bader Ginsburg, an anchor of the court’s liberal wing, and Anthony Kennedy, who has often been the decisive swing vote in 5-4 opinions.

Life expectancy at birth in the United States now stands at 76.3 years for males and 81.1 years for females. However, a male who had already reached the age of 75 in 2011 has a life expectancy of another 11.0 years, according to the CDC, while a female who had reached 75 had a life expectancy of another 12.9 years.

This makes it extremely likely that whoever is elected tomorrow will be nominating at least one, if nor two, new justices. Of the 151 people nominated as justices, just 29 did not assume that position. Presidents have withdrawn nominations at times, but since Herbert Hoover, only two nominees have been rejected by the vote of the Senate. In other words, the most lasting decision a president can ever make is who he or she nominates to the highest court in the land.

Over the last decade, the Supreme Court decided on a number of major issues by a margin of one vote.

Zelman v. Simmons-Harris (2002) – the court voted 5-4 that a school-choice program in Ohio that allowed students to redeem tuition vouchers at private schools, including those with a religious affiliation, did not violate the First Amendment prohibition on Congress enacting laws “respecting an establishment of religion.” Anthony Kennedy voted with the majority in this case.

Grutter v. Bollinger (2003) – the court voted 5-4 that it did not violate the Equal Protection Clause of the 14th Amendment for the University of Michigan Law School to consider race as a factor in admitting students. Justice Ginsburg voted with the majority in this case.

McCreary County v. ACLU (2005) – the court voted 5-4 that counties in Kentucky could not display the Ten Commandments in court houses and public schools because it violated the First Amendment prohibition on Congress passing laws “respecting an establishment of religion.” Justice Ginsburg voted with the majority in this case.

Kelo v. New London (2005) – the court voted 5-4 that a city in Connecticut could take property away from one private owner and give it to another private owner in hopes of increasing the city’s tax revenues and that this did not violate the 5th Amendment which says government can take private property only for a “public use.” Justices Kennedy and Ginsburg both voted in the majority in this case.

Gonzalez v. Carhart (2006) – the court voted 5-4 that Congress could prohibit partial-birth abortion. Justice Kennedy voted with the majority in this case.

District of Columbia (2007) – the court voted 5-4 that individuals have a Second Amendment right to own guns even if they are not in a militia and that this right was violated by a D.C. law that prohibited a person from registering a handgun, or even having a gun in their home unless it was unloaded and trigger-locked. Justice Kennedy voted with the majority in this case.

Citizens United v. FEC (2010) – the court voted 5-4 that corporations have a First Amendment right to freedom of speech, including the right to mention the name of person who is a candidate for federal office. Justice Kennedy wrote the majority opinion in this case.

This year, in its opinion on the cases challenging the Obamacare law, the court voted 5-4 that the federal government could force individuals to buy health insurance. Justice Ginsburg voted with the 5-member majority on that issue.

There is no guarantee a judicial nominee will consistently vote according to the ideology of the president that makes the nomination. Most presidents have adamantly contended they had no litmus test for nominees except they were qualified. And some justices (such as John Roberts, of late) have voted quite differently than expected. But there is no doubt, over the life of their tenure, no one has a greater effect on the long-term direction of excepted law than a Supreme Court justice.

From eldest to youngest, the nine Supreme Court justices and the president who nominated them:

Ruth Bader Ginsburg (Bill Clinton) – 79

Antonin Scalia (Ronald Reagan) 76

Anthony Kennedy (Ronald Reagan) – 76

Stephen Breyer (Bill Clinton) 74

Clarence Thomas (George H.W. Bush) – 68

Sam Alito (George W. Bush) 66

Sonia Sotomayor (Barack Obama) – 62

John Roberts (George W. Bush) – 61

Elena Kagan (Barack Obama) – 56

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