When Barack Obama becomes president, not only will the political landscape shift in this country, but the judicial landscape will as well. Empirical research from Vanderbilt professor of law and political science Tracey George shows how the United States court system, especially the Supreme Court and the Court of Appeals, could dramatically change soon after Obama takes office.
George said there is likelihood that as many as three Supreme Court justices could leave the court while Obama is in office. Those justices are most likely to be John Paul Stevens, Ruth Bader Ginsburg and David Souter.
“If a justice is considering stepping down, it tends to happen when the party of the president that nominated that justice is in power,” said George.
George believes the Obama administration, like past administrations, will consider both political and policymaking goals in nominating a replacement. She expects his ideal candidate would be a Latina Democrat who is less than 60 years old.
“The president will want someone who will help strengthen political alliances. The election showed that the Hispanic community and women greatly helped Obama win,” said George.
The best professional background is less clear. George said that Obama may look to the appeals court bench for nominees because he can be more confident about their likely behavior on the court and because they may face an easier confirmation process. Or he may look beyond the courts for individuals with ideas that dovetail with his own and who would bring a fresh perspective to the bench.
“Given his own background, it wouldn’t be surprising if he nominated a law professor to the court,” said George.
How smoothly will Obama’s picks go through the nomination process? George said if Obama is replacing one of the justices already on the left-leaning side of the court, “the process should not be as grueling as ones we’ve seen in the past because the appointment is unlikely to change the balance of the court.”
But, she said the Harriett Miers’ nomination highlights that the new president must consider the possibility that attacks might come from within his own party rather than from outside of it.
The real power may lie in the lower courts. George’s research found that more than 30,000 cases were decided on the merits by courts of appeals last term as compared to fewer than 80 in the Supreme Court.
“In a real sense, the circuit courts are the court of last resort for most claims and parties,” said George.
There are currently 13 vacancies on the courts of appeals (8 percent of the 167 active judgeships) and an additional 41 vacancies on the district courts (about 6 percent.) While George W. Bush came into office with even more openings to fill (26 court of appeals and 54 district court vacancies), George said the number of openings may quickly rise because the change in party in power may prompt Clinton and Carter appointees to step down soon to ensure a like-minded replacement.
George said the Democratic Congress may increase the number of federal judges, which it has not done in two decades despite repeated pleas from the federal judiciary.
– Amy Wolf, Vanderbilt University Public Affairs
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