November 2, 2012

COMMENTARY: Supreme Court hangs in the balance

Noah Feldman

One-issue voters have always seemed like cranks to me.

It's natural enough to have priorities, but who thinks one of them is more important than all the other political issues combined?

This presidential election, though, is different.

A reasonable person could vote on the basis of future Supreme Court nominations alone -- because on almost everything else that matters, the differences between the candidates are going to be vanishingly small when put into practice.

Start with some obvious truths that no one is much mentioning in the news media's frenzied effort to generate excitement. Because the election is going to be close, whoever wins will have little or no mandate to act definitively.

The House and Senate probably will be split, meaning that either Barack Obama or Mitt Romney will have to govern in the center.

Partisans on either side will tell you that the policy differences are legion, which is true. It's just that presidents don't get to implement the majority of their most important domestic policies without Congress, and Congress is not going to back either side in making radical changes.

Both candidates want to lower the deficit, but neither controls the economic cycle, which will either generate millions more jobs and higher tax revenues, or won't.

On foreign policy, as the lackluster final debate revealed, there is essentially no daylight between the candidates. It won't be in either president's interests for the U.S. to be dragged into a Middle Eastern war, or to take a soft line on China's monetary policy.

But wait, you say, surely the two men have radically different personalities, and divergent approaches to government. Their personalities differ, of course, and Obama may trust government a shade more than Romney.

But let's be honest: These are two highly pragmatic, highly intelligent, highly competitive, very tall men. Each has had a special aura around him at least since his student days. They both went to elite private high schools, fancy colleges and then graduate school at Harvard.

There is a reason that the word "pragmatist" has been attached to each of them for many years. Obama supporters accuse Romney of having no fixed beliefs, but of course pragmatism embraces that stance as open-mindedness. Romney backers say Obama is actually a leftist who thinks government can do a better job of building wealth than private industry.

Obama, however, is no leftist -- just ask the leftists who are sorely disappointed by his centrist presidency.

When it comes to Supreme Court appointees, though, the differences really are going to be stark -- and they will last for a generation. Somehow the campaigns have failed to remind us that four justices are 74 or older, meaning they will be at least 78 by the end of the term.

Justice Ruth Bader Ginsburg is already 79, with Justices Antonin Scalia and Anthony Kennedy not far behind at 76 and Justice Stephen Breyer at 74.

One hopes of course they all live long lives, but the notion that all four still will be willing and able to serve the next four years is preposterous. Several will retire and be replaced -- and even one replacement could fundamentally change the configuration of the court.

If Romney becomes president, Ginsburg certainly will do all she can to remain in the saddle. But if she were to have to retire for health reasons (she has been treated for colon cancer and pancreatic cancer), the court would become ineluctably conservative.

The current 4-to-4 split with Kennedy as the swing vote would change into a stable 5-to-3 conservative majority, with Kennedy no longer important.

Under Romney, Scalia might retire to give a Republican president the chance to replace him with someone young and comparably conservative. That would consolidate the conservative majority of Chief Justice John Roberts, Justice Samuel Alito and Justice Clarence Thomas (now 64) for as long as Thomas stayed healthy.

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