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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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Bush 1 and 2 did plenty to scew the court up....why are conservatives worried? does balance scare them...getting along with non conservative thinkers is too scarey?
The Demoncrats and Obama are nothing but liars.
Everything they say is the opposite of the truth.
Don't waste your time trying to reason with them.
Lame stream media is also telling the lies to back up the Demoncrats.
Obama is a spawn of Lucifer. The Demoncrats worship the Devil.
Another report from the "insane-stream media"...
Jeffery D. Parks---------------"This individual needs mental help badly!!"-------probably one of these 'poor' whites in a Red State who hasn't a pot to p--s in, yet votes Republican!!
And God's Oppressive Party would have us all adhere to Bronze Age mythology. Look at their platform people- it is utter nonsense based on Christian ideology!
Get rid of Citizens United and put an end to the anti-American Republicans!
The reason there are so many Appeals Court vacancies is the "party of H*LL NO" obstructionists in the Senate.
Why should the POTUS nominate someone when the BACKWARD HATERS in the Senate will block it?
Vote OBAMA/BIDEN 2012 and ANY non GOP candidates down the ballot. He deserves a second term with a CHASTISED minority party that will work WITH him and not AGAINST EVERYTHING.
Watch as some GOP TROLL attacks with more LIES, DISTORTIONS, DEFLECTIONS and INSULTS. They do it so well!
JGA Phillip Anthony Biondo for President 2012 of the Fraternity Party! Kegs party at the White House! Free College like k-12. Free Healthcare. All safe drugs over the counter. Escorts legal. Casinos legal. Bin Laden's dead, wars over. You all are not smart enough to elect me. Evolution, big bang, god of Milky Way. Fraternity party: I'm suing the supreme court Apes for freedom of Religion, I suffer from severe depression because holy medicines, primarily thc, psilocybin, mescaline, lsd, and dmt are illegal, in fact I committed suicide. Screw Nixon! Kill the DEA! Superhuman AI: 2045. Navy Nuclear Spaceships. Meditate. I'm a Sapien, what are you? Does Obama or Romney believe in global warming? We are like deer in the headlights.
Sounds like a member of the 47%. My taxes hard at work.
Romney/Ryan 2012
I read recently, that Justice Clarence Thomas hasn't asked a single question from the bench in six years. And since he was appointed to the bench in 1987 by George Bush, he's asked so few questions and has written so few opinions, he is thought to have the least understanding of the law than any judge that had ever been appointed to the bench. That's exactly what the conservatives wanted.
Yes, put progressives on the court, move the country forward...
Obama/Biden 2012
Socialism sounds great compared to Corporate servitude,Corporate Jihad, education from the 1820's. These are all goals of conservatives, they're not just bass-akwards anymore. They "believe" in the boogie man taking them to a bank vault in the sky.
It's time to finally ditch this disgusting Communist Kenyan dog-eater and elect a REAL American with REAL American values.
Let's send Obama and Moochelle back to the South side of Chicago. That cess pool where they have 40 shootings in one day.
President Mitt Romney, our beloved leader for the next EIGHT YEARS.
We will need to keep a few of the wacko Democrats around for a while for amusement purposes. Nancy and Harry for sure. Always good for a laugh.
Pay attention kids!!!
This is your brain on Dumb FUX NEWS...any questions?
You gotta admit, liberals, this is a great line:
"disgusting Communist Kenyan dog-eater"
to Joseph E.Parent ! I agree totally !!
NO ONE can argue the fact that Obama was brought up outside the U.S. and he was never raised with the National pride of being an American.
A pathetic clown of a President ! I knew we were in trouble the moment I heard that Jimmy Carter endorsed him for President.
Got to get rid of this loser !!!
Are the conservatives treating women as second class citizens who have no affordable, systematic, preventive care for many decades till President Obama?
Are our court system supposed to protect and to preserve the constitutional right first? Or are our court system protected the right of some special faith groups or religious groups first?
For instance, one would like to get behind the wheel; then one should have driving lesson first; and one should have reached some certain age, regardless of any faith group or religion, and one should pass the driving test before one sits behind the wheel.
This is an example to see the sequences of events taken in some specific order.
Other instance, what if God created human being first, without created land and sea, then where would the human being stand or live? The book of Genesis has taught the sequences of events in which God has created heavens and earth according to His plan.
No, women have had affordable contraception for decades.....this latest picked fight with the Catholic Church to try to force them to provide it, against their beliefs, was just the kind of staged event that liberals pull every once in a while.
These kind of staged events work on very, very stupid people...especially the drooling underclass that makes up 80% of the Democratic Party.
Well, Chesty, we probably shouldn't care too much what people who believe in virgin births, resurrections, vicarious redemption via human sacrifice predicated on animal sacrifice, imaginary friends/enemies, heaven/hell, judgment, magical thinking/superstition, a book written by misogynistic, scientifically illiterate, primitive men, etc., actually think (and I am being generous by using the word "think"). We, perhaps, should listen to what they have to say, just as we, perhaps, should listen to delusional/demented people. The Catholic church should have shriveled and vanished long ago, and they should have no say in any decisions related to public policy - and politicians should stop giving a damn what the Catholic church "thinks."
An Obama "second term", would probably put at least 2 more liberal judges on the bench. Some of you posting might like that, but for me, a gun owner, I fear this, at the least: A plethora of Courts will hear all sorts of challenges to the 2nd Amendment. Eventually ending up at the Supreme Court, where the 4 present anti-gun judges, joined by one more will rule the 2nd applies only to members of a milita (National Guard?) and that no individual can own a firearm.
Additionally, Obama, as he has shown perfect willingness to do, will pass Executive Orders by fiat, banning hi-cap mags, assault weapons, semi-automatic weapons, and any other gun thing he can think of. And, to all you people reading this, saying "Good", really think this through. Those orders would make criminals out of about 100+ million people in the United States.
If, as a gun owner, you vote for Obama again, and he wins, you will get what you asked for. And you will NOT like it!
Flasher: you do seem to have quite the crystal ball in front of you. Telling us all what Obama "would" and "will" do. However, there is such a thing as the court process, which is not very predictable at all. Your crystal ball is bunk. You are really pandering to gun owners as a fear-monger for Romney. As an intelligent gun owner, I do not buy your message. I choose to vote for who I want, not based on any fear.
Can't be worse than Bush's appointees!
This Failed Loser would be toast if the GOP had nominated a right winger, but the party Establishment foisted another moderate on them with all their cash in ads, so we'll see what happens in a month and a half.
On the positive side if the Failed, Economic Loser President Obama does win, it's possible that Romney would have just nominated some squishy moderates who sided with the liberal faux-justices anyway.
We'll get more leftwing extremists on the court manufacturing decisions out of thin air if Obama wins. If Romney does...maybe we'd get some rightwingers, probably some moderates too though. The Left only puts up partisan radicals, the Right puts up liberals, moderates and conservatives, when they have the presidency. The more moderate the Repub, the more likely he puts up a liberal or moderate judge.
When you say right winger you actually mean, "angry old white guys". If the GOP/TEA/Dumb FUX NEWS party was running a real right winger, your party would be losing by a landslide since the are enough crazy old white guys to win...
No, real rightwingers always beat the shi'ite out of you liberal scum.
1980, 1984, even GHW Bush pretending to be a rightwinger in 1988, 1994, 2010.
When RINOS are nominated, things usually work out badly...GHW Bush only got 1 term after going RINO, Bob Dole lost perfect election chance in 1996, Centrist McCain in 2008, Mitt Romney in 2012?
We'll see. Many people stay home when a RINO is nominated on the GOP side.
Why do dumb FUX NEWS fans pretend Greorge W. Bush never existed?
Why is he and Cheney in hiding during this election season?
George Bush wasn't a real rightwinger because he spent too much and expanded non-defense spending, but he was kind of in between. A middle of the road Rwinger, big spender, but socially conservative.
That led to the 51-48% victory in 2004, despite his inability to communicate.
This is why it is more important than ever to give Obama a second term. If Romney were elected we would see a more right wing court than already exists. The wealthy, powerful, and corporate America have had there way too long already.
No they haven't. If they did the tax rates on the rich and corporations wouldn't be so much higher than they are on everyone else.
yep and i ate alot better when the repub's were in office than the moron we got now. i'm hungry, do you people shop for food, i do and it sucks when you see a can of cambells soup 60 cents more than it was last year, wait till you go get a loan after all this stimulis money and it is 12% like it was when carter was president or did you all forget. it's coming and you can blame reid, pelosi, and then came obama to finish us off. electric bill alone will take a third of your pay in the winter, freaking heating is 3.65 right now in ct. you might find it a little cheaper but thats now wait until december, we will be paying four bucks. "F" him already, socialistic ass.
Where in the hell do you people come up with this crap? Stop allowing the politicians to devide us. They don't know $hit from shinola! That's right, $hit from shanola. We are a represenative republic, NOT a democracy. Are you happy with your representitive?
What exactly is shinola anyway? I know $hit but that shinola is a mystery to me.
Corey,
Shinola is a brand name for shoe polish.
An Obama court would stop the trend toward giving unlimited power to corporations.
get your gun annie, their might be war here in America
Giving President Obama a chance to fill Supreme Court and appellate court vacancies is exactly the reason, we all need to work harder for his reelection.
You are right about that, I am engaged in my local Obama campaign headquarters, for those who would see the end of Romney, just get out and help make the difference, do not talk, but do!
A vote for President Obama is a vote for freedom, a vote for Romney is a vote for repression.
Choose Freedom and move this nation forward to the future rather than backwards to the past.
And please, don't jump down my throught for seeing the light.
Let's be honest - "conservatives" is a term that, in general, appears to be applicable to those who hold Christian ideology/beliefs and who would like to see Christian ideology/beliefs influence government and society. These people have the right to believe their Bronze Age nonsense, but they do not have the right to impose it on others, especially via our government. The Republican Party is full of "conservatives" (including Romney and Ryan) who believe in an imaginary friend in the sky and, like GW Bush, who prayed about invading Iraq and was "led" to do so, might let their magical thinking influence policies that affect all of us and those of other nations.
"Conservative," to me, is a polite term for those stuck in the Bronze Age. Personally, get them out of the Supreme Court (eg Scalia) and out of our secular government.
Tsk, tsk stupid, the Bronze Age was 1000+ years before Christ and Christians.
C'mon you dumb liberal.
Ah, but the mythological figure of Jesus is based on Sumerian and Mediterranean mythology that predates the Common Era by 1000+ years. And, many positions held by "Conservatives" are based on beliefs/ideas expressed in the Old Testament (same sex marriage, etc.). So, perhaps you should study some more history and mythology.
And, please define "dumb." My IQ, for the record, is 2 standard devs above the mean (not that that is really relevant here, since we appear to be embarking on ad hominems).
I thought the SCOTUS wasn't supposed to be political (cue the rolling eyes). So the GOP will only be happy with GOP appointed justices? Who knew? If (when) Obama wins that will give the Democrats 16 out of 24 years in the white house. Seems to me the voters have as much a hand in giving the liberals the majority in the SCOTUS. That is Democracy at work people. After all we have a Republican form of government (not to be confused with the Republican party).
oboma 2012 and a fresh functional congress . oh yeaah bonner voyage !
If the Republicans want to get people to vote for them they need to be a little more caring about the American People in general and not the 1% who have more money than they need. With the knuckle head they got running for office showing that he could give a rats ass about the poor and people who don't make more than 250,000 a year. It would serve them right to all be out of a job this coming election. We need term limits to encourage them to work on fixing the problems instead of causing more.
Translating the above from Leftwing-ese into English:
"The Republicans need to be a little more caring about the American People in general"
means
"The Republicans need to not go ahead with their plans for tiny cuts in the Liberals' Failed Welfare State, and instead go along with plans to fatten up the Bloated Pig Federal Government even more. The more you spend, the more you care"
Learned, progressive thinkers are scared to death of a court stacked by the likes of Romney and his masters.
Which is precisely why we should note vote for any Republicans - unless they "evolve," change their platform (it is a horrid document, imo), and tell Norquist to go to he--.
Hey if odumbo gets elected he calls the shots, a liberal can get on the court with no problems conservatives get roasted because a liberal can only vote a liberal way which gives away rights! I want rights but I like people who stand up for the law not for the democratic party it is a shame!
Dear billof, you really should have continued your education beyond 5th grade. It would really be helpful.
if odumbo gets re-elected we will be in trouble.
Dear John,
Perhaps you should give that advice to your dear Obama as he seems to think it is more important to hob-nob with celebrities and pimps with limps, rather than meet with world leaders...
hey broke, what does that have to do with the topic here?
tony...do you have a 5th grade education like john is implying ?
come on really keck, do you really want to go there, please don't tell me that's the best you can do. John wouldn't make a pimple on my a$$ on a bad day.