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The New Yorker's Jeffrey Toobin joins Morning Joe to discuss President Obama's relationship with the Supreme Court, Chief Justice John Roberts and his ruling on the Affordable Care Act, and the relationships the justices have with one another.
So far Obama has appointed 159 judges to the federal bench, including his two Supreme Court selections, Sonia Sotomayor and Elena Kagan.
With Sotomayor and Kagan, Obama simply replaced two members of the liberal bloc on the court (John Paul Stevens and David Souter) with two younger liberals. But most of the Obama-appointed judges – 127 of them – are trial judges who exert less influence on the broad direction of the law than do appeals court judges or Supreme Court justices.
Recommended: Obama denounces violence in Middle East, calls for tolerance and democracy
Both on the Supreme Court – where “swing vote” Justice Anthony Kennedy and conservative Justice Antonin Scalia are age 76 – and on the courts of appeal, where there are now 14 vacancies, Obama would be able to nudge the courts in a progressive direction if he wins a second term.
Reuters, Getty Images
In the final push in the 2012 presidential election, candidates Mitt Romney and Barack Obama make their last appeals to voters.
The high court begins its 2012-13 term on Monday and has scheduled arguments on the use of race in undergraduate admissions decisions at the University of Texas and on whether multinational firms can be sued for their alleged role in human rights abuses that occur outside the United States. It’s also likely the court will take up challenges to the 1996 Defense of Marriage Act, which defines marriage as solely the union of one man and one woman.
“It would be a bad mistake for conservatives to get gloomy and defeatist. This election is very winnable,” said Ed Whelan, president of the Ethics and Public Policy Center and a former Scalia law clerk who served in the Justice Department under President George W. Bush.
But Whelan added, “There are lots of reasons why anyone concerned about America’s future should rue the prospect of President Obama’s re-election. What President Obama would do to the Supreme Court is high on the list.”
Alex Wong / Getty Images
“The potential impact of the next president on the Supreme Court is immense,” said Carrie Severino, the chief counsel and policy director at the Judicial Crisis Network, a right-of-center advocacy group. “There could easily be three nominations during the next term. … Most people expect there to be at least one vacancy.”
She said if Obama were re-elected and got three more high court nominations, “that would put him in the position of having nominated the majority of the justices on the Supreme Court. That’s an incredible influence over the way the court shapes American society.”
She said there’s now a 5-4 split on issues that have been before or are coming before the court, such as whether schools can use applicants’ and students’ race or ethnicity in admissions or in assigning students to specific public schools.
From racial preferences to gun owners’ rights to immigration to same-sex marriage, “you name it – there are so many issues where the outcome turns on one vote at the Supreme Court and the president could easily be shaping that next vote,” Severino said. And those concerns extend even to a possible Romney presidency.
Curt Levey, president of the Committee for Justice, a conservative group that tracks judicial nominations, said Chief Justice John Roberts’ decision to join the four liberal-leaning justices in upholding Obama’s Affordable Care Act “has made conservatives think somewhat differently” about judicial nominees. “There’s a lot of sober thinking among conservatives that it is not just enough to appoint somebody who we know to have the right philosophy – you have to appoint somebody who has shown, either as a judge or perhaps in some other setting, that they will stick with that philosophy even when there’s political pressure to do otherwise.”
Of course, it’s not just those on the right who are warily watching the election outcome and its impact on the judiciary. Doug Kendall, president of the Constitutional Accountability Center, a progressive think tank and advocacy group, said, “I think a Romney presidency has a far greater potential to shift the court to the right than a second Obama term would have the potential to shift it to the left.”
Kendall said the most likely high court retiree is Justice Ruth Bader Ginsburg, 79, appointed to the court by President Bill Clinton in 1993. “If President Romney nominates her successor, it will have a huge impact on the ideological balance of the court. If President Obama appoints Justice Ginsburg’s successor it will simply continue the current ideological balance and will not move the court to the left at all.”
As for appeals court and trial court judges, Severino contends that in his first term Obama has not put great emphasis on appointing them. “Many of us were surprised – and relieved – that he didn’t do that in his first term. It will be interesting to see whether his focus shifts” to judicial nominations if he wins a second term, Severino said.
After eight years of Democrats delaying and blocking Bush judicial nominees such as Miguel Estrada and William Pryor, Levey said Senate Republicans decided when Obama became president “they weren’t just going to roll over” on his judicial nominees. But “the bigger reason Obama has had a record low number of confirmations, at least taken as percentage of the judiciary, is that Obama hasn’t made it a priority.”
For example, there are now 14 appeals court vacancies but only 7 Obama nominees for those vacancies.
Senate Republicans have succeeded in blocking a couple of Obama’s appeals court picks: Goodwin Liu in California and Caitlin Halligan in the District of Columbia. And they have slowed the pace of confirmation for those whom Obama has nominated.
A report issued last week by the Congressional Research Service (CRS) looked at waiting times for uncontroversial appeals court nominees, defined as nominees whom the Judiciary Committee approved by voice vote or by a unanimous roll call vote, and who were ultimately confirmed by the full Senate by voice vote, or with five or fewer ‘nay’ votes.
The CRS report found that the average number of days from nomination by the president to Senate confirmation went from 64 days during Ronald Reagan’s presidency to 201 days in George W. Bush’s presidency to 227 days during Obama’s presidency.
“My expectation is that President Obama will have to take that battle on more directly in a second term,” Kendall said.
Noting that Republicans had prevented confirmation of Obama’s two nominees to the powerful U.S. Court of Appeals for the District of Columbia Circuit, which hears most regulatory agency appeals, Kendall said, “He needs to fill those seats” and needs to “exercise his constitutional authority as president to fill vacancies on that incredibly important court.”
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A centrist court that was able to distinguish between a person and a corporation might be nice.......... Actually that's not centrist, it's common sense. I'd settle for that.
Funny, when race baiters and misogynist Bill Maher offered to form a super pac for Obama he gladly accepted. When former NAZI employee and criminal capitalist George Soros offered to support 400 different political action organizations Obama gladly took the graft.
When the CEO of GE asked for an office in the White House and offered an entire new network to plug Obama policies (NBC), Obama gladly said yes and rewarded GE with years of ZERO taxes.
Centrist? You jest.
@paid, do you think the same goes for Romney? Do the names Koch Brothers, Paul Single, Bob Perry, Philip Geier, Kenneth Griffin, Sheldon Adelson, Harold Simmons, Karl Rove, and The Americans for Prosperity, mean anything to you? Add to that Mitt's pittance tax payments and refusal to disclose his tax returns and you've got real graft, bro. REAL GRAFT!
Jack, you call multi millions in tax payments pittance? Wow you either pay billions in taxes or we have a different definition of pittance.
john, 14% of taxable income IS pittance. Do you have a hole in your head that allows facts like these to pass through your brain without understanding that? Sheesh!
The Roberts Court has done everything they can for big business and promote the Federalist Society agenda of screwing the American Public.
Goodbye citizens united ! Good riddance !!!
The repubs have nothing to worry about. Scalia would rather die and be buried sitting upright in his chair on the Supreme Court dias rather than concede his position to a progressive judge. He's BY FAR far the most partisan Supreme Court judge in the history of the United States.
Chief Justice Roger Taney was fairly partisan.
I agree, but in my opinion he pales in comparison to Scalia.
Wasn't it Taney whom Lincoln threatened to have arrested? Obama admires and respects Lincoln, so maybe....
We can dream, I suppose.
Just tax and you can do anything in this society. Liberal / conservative. it don't matter.
And the most "DO-Nothing" on the SCOTUS is definitely Clarence Thomas appointed by Bush Sr. He should be removed for failing to speak! The only thing he does in vote for religious Repub points!
I can't wait until we have a change in the SC and an overturn of CitzUnited.
Justice Thomas is one of the great justices of the past 150 years on the court. He has written over 400 opinions that are well received among Constitutional scholars.
Why don't you tell us what is flawed or lacking in substance in the hundreds of opnions he has written
http://www.law.cornell.edu/supct/author.php?Thomas
The court hasn't heard that many cases since Justice Thomas has been on it. Nice try.
Larry, on what basis to you measure Thomas against other justices. Surely you would concede that there are many other justices whose opinions have also met with respect by Constitutional scholars. Where Thomas has failed miserable is in the silence he maintains in Court. Even other justices have commented on that fact.
Larry -
Justice Thomas cannot separate church from state. Any issue he sides on is one that favors religion. He is a complete failure as a justice. Give me one example of a decision he's even decided that's good for ALL?
Obama will never get re elected. No point in guessing what he would do. Everyday the undecided are shocked and offended by his comments about the middle east and his continued lies to us abo0ut the attacks.
The debates will bury him once and for all.
I seriously doubt that....
Debates have rarely had much impact on the final outcome. Romney's going to lose, which the majority of Americans are good with.
Middle America Man: so you personally know the "majority of Americans"? Cuz this one isn't good with it! Barry Hussein Obummer, the closet muslim, can pack up his prayer rug and go back to Chicago. Maybe Rahm can help him organize a community.
Conservatives are not warily on anything that comes out of the court. obama care was unconstitutional but a conservative court said that if you want to kill someone or take away religeous beliefs, all you need to do is add a tax to it. What could possibly the court have to hear at that point which renders them even remotely usefull to society? I mean, take away guns..all you have to do is tax people out of existance that have them . Get rid of the court, their judgement is useless. They shouldn't have the power anyway under the constitution.
Jolly
Uh, the Constitution is the document that gives them that power. In fact, that's their ONLY job, to decide whether a law is or isn't Constitutional.
Perhaps you should learn a bit about our system of government. Or would that be just too much to ask?
This just in. Big O is up in the polls in North Carolina! The map is now 2008.
The problem R&R have in the debates is they actually have to answer questions. Ryan's plans are DOA, Romney just leaves you guessing what he would really do. If he evades, he looses. If he goes back to the pragmatic Romney, he has a chance. Unfortunately he would have to re-flop and reverse all the tesbag rehtoric. Obama will wipe his a...
An "Obama Court" I am gleefully awaiting this. With a Demorcatic controlled Senate and the President in his second term, I hope he appoints the most flaming left wing liberal gay asian that San Fransisco has to offer. The exploding heads from the RWNJs will be a pleasure to watch! THEN we can get Citizens United overturned and get this county back to "American Values"
Destroying the country makes you happy? Ever hear of Center for American Progress/John Podesta?
R U Sure,
Changing the country's direction is not automatically or even necessarily 'destroying the country'. Your side had your chance and it failed, miserably. Now it's going to be the Left's turn.
Deal with it.
The left has been screwing up this country for the last 4 years. You guys are out! Deal with it.
Anybody else notice that on controversial decisions whether in the SC or at Federal levels, like Obamacare, immigration, Citizens United, etc. decisions are handed down that can go either way, conservative or liberal. Why? Because conservative judges will rule based on their interpretation of the constitution, whether that goes along with their political philosophy or not. Liberal judges on the other hand will invariably vote the liberal way even if they have to twist, reframe, or outright ignore the constitution. If liberals ever get a majority you might as well not have a SC as it would be obvious how they would vote before any arguments are ever made.
Obama has appointed two activists only one of them a judge that have shown that they are willing to legislate from the bench.
More appointments from the amateur will be another leap towards the destruction of the U.S.
There are no set rules for qualification. Although every past justice has been a lawyer, 41 of the 109 justices had no prior judicial experience.
Of the eight Kennedy, Johnson, and Nixon appointees, a majority — White, Goldberg, Fortas, Powell, and Rehnquist — hadn’t served as judges.
http://www.csmonitor.com/2005/1007/p01s03-usju.html
Don't forget, Roberts was the deciding vote on the Affordable Care Act.
Thinking
Funny, any time a conservative disagrees with a ruling they call it 'legislating from the bench' or and 'activist court'. You guys NEVER want to admit that you might be wrong.
Wouldn't it be too bad if Obama appointed a Supreme Court that ruled in favor of individual rights instead of in favor of corporate America. Corporations are Not people, my friend. If I were to err, I would rather err on the side of the individual.
WHEN YOU HEAR Romney say emphatically that he will win, even in the face of a deluge of bad polls against him and his serial missteps, all those who truly love this country should ask: What are they planning? What are they up to? Romney and his ruthless backer millionaires and billionaire are very nasty people--and they are thoroughly self-seeking. THESE PEOPLE ARE SO DESPERATE FOR POWER, THEY WILL DO ANYTHING, LEGAL OR ILLEGAL TO GET IT. A RIGGED ELECTION—D DON’T LAUGH—THESE ARE RUTHLESS OPERATORS AND THEY WANT TO CREATE A CONSTITUTIONAL CRISIS. ARE YOU READY? BUSH GOT AWAY WITH IT IN 2000....ROMNEY/RYAN AND THEIR RICH COLLABORATORS WOUND NOT . . . NOT THIS TIME. THE NATION WILL RISE IN REVOLT! ARE DEMOCRATS AND THE FBI READY FOR THIS? Romney and some of his big donor backers along with some Republican Governors are planning to rig this election. Their plan includes some of the fraud tactics tried successfully in Wisconsin, including tampering with computer records and votes in rural communities and some big cities. DEMOCRATS and the FBI must not take this threat lightly. These people are ruthless dark side operators—they are determined and desperate. THEY DON'T BELIEVE IN DEMOCRACY, PERIOD—and, though they may shout God to us, they don’t really believe in him or what they say nor do they square their conduct before him as “God fearing” people! Just take a look at their WICKED POLICIES. It’s all a shell game. In November, they are at the very least hoping for a disputed election and a constitutional crisis in which the Supreme Political Court under Republican control would declare Romney winner. BE WARNED AMERICA, AND DEMOCRATS. THESE PEOPLE MEAN BUSINESS. Do you have the back bone to fight them, to fight back, and to win? What are you prepared to do against their dark plot? Romney, in spite of very bad polls believes he will win. Part of Romney’s winning plan has been outsourced to as far away place as India. That means, American electronic voting machines could be hacked into and manipulated from India where Romney has done much of his outsourcing practice. Believe it or not at your own risk! Know for sure that these desperate guys are ruthless, dark side operators. Now is the time to plan to stop them for good!!!
When you use terms like: ruthless - dark side operators - wicked policies - fraud - nasty - desperate, tampering with records: Are you talking about Cheney?
I hope obama wins again if for nothing else to have a supreme court who decrees with the constitution as a reference rather than the bible.
we've seldom had a supreme court rule by the Constitution since the coup of FDR
We've been under a post constitutional illegitimate tyranny since then.
ain't that the truth!!!!!!!!
Conservatives worry about the composition of the SC because they want to have the same corrupt judges on the bench in case the election comes too close, then they can have the SC "appoint" another president.
You righties just get in the back seat and shut up! Dumbass righties...
Obama dosen't need to be President any more. Four more years of him and ever one will be on welfare.
Even you Joe?
Screw Obama and his liberal agenda.
Whatever! See you in November!
If by 'liberal' you mean 'protecting civil rights and upholding the Constitution' then call me a liberal!!!
Packing the court with Romney appointees would be disastrous.
This, if for no other reason, is why we cannot re-elect Obama. Kennedy and Scalia's seat must remain conservative.
I'm afraid I've got some bad news...
Obama in general worries me and I made the mistake of voting for him the first time around.
We don't believe you.
Government welfare programs are created to buy the
votes of those who want someone to take care of them?
Work for it or do with out....Romney--Ryan--2012...and lets get some jobs going.
Right now we have a court with several radical conservatives who are aligned with corporate interests. We don't need to go to a liberal court as that will just screw us up in the other direction. Please, please get rid of Scalia! Thomas would be good too, as he is obvious a seriously compromised judge with a radical wife with an agenda. But I won't hold my breath there.
Only by having a moderate majority in the Supreme Court will we have any hope of these judges making actual judgments, rather than idealogical votes. The Citizens United decision is a good example of a decision that could only happen in a court that is mostly idealogical in composition. And see where this pitiful decision has gotten us: Hundreds of millions of dollars being spent by a few billionaires trying to buy influence so as to make more billions. This is disgusting and makes a mockery of democracy.
How can the law always be a 5-4 split? You'd think systematic interpretation of the law would be skewed 7-2 or 8-1. Seems odd that its always skewed on political affiliation.
Who cares who is on the supreme court. This country is already in the toilet; so, let's just flush it.
That's the spirit!!!!!
The SCOTUS: One of the single biggest reasons to VOTE FOR OBAMA/BIDEN--2012!
No doubt!!