Supremes: Romney’s picks & more

Committee for Justice president Curt Levey discussed the future direction of the Supreme Court in an interview in the Fall 2012 issue of The Objective Standard, the nation’s leading Objectivist journal.  The interview touched on Supreme Court retirements, the next president’s nominees, the future of Roe v. Wade, the issues that will dominate the Court over the next decade, and more.  Excerpts of the interview are below. The full 3000-plus word interview is available here (subscription only) or from CFJ by request.

Curt Levey

Interview Excerpts:

On Supreme Court retirements:

Levey:  Justices Antonin Scalia and Anthony Kennedy will both be eighty in 2016, so I think they’d be next on the list [after Ruth Bader Ginsberg] to retire. Scalia has explicitly said that he’d rather retire under a president who would appoint a conservative; Kennedy, I don’t know that he cares. ...

There’s a strong likelihood that at least one of them will leave the bench, which means that Obama, if reelected, will likely be able to replace one of them with a liberal, and that’s all he needs to create a court along the lines of the liberal court of the 1960s under Chief Justice Earl Warren. There are already four predictable, consistent liberals on the court. All Obama needs to do is replace Kennedy or Scalia, and he’s got the votes to do pretty much whatever he wants, from making gay marriage a constitutional right to requiring taxpayer funding of abortion, etcetera.

On potential Romney Supreme Court nominees:

Levey: I’ll start with Romney. Paul Clement has to be number one on the list. He’s a former United States solicitor general, and everyone agrees he’s a brilliant guy. He has argued some controversial cases, including ObamaCare and the Arizona immigration case recently; but he’s respected by both sides of the aisle, and it would be very hard to block him.

Another possibility is Viet Dinh, formerly head of the Office of Legal Policy at the Department of Justice. He would be the first Asian American justice. If Romney would want to go with a woman, the most likely would be Diane Sykes of the Seventh Circuit; she’s certainly very popular with conservatives. Some of the younger circuit court judges who would be fairly likely include Jeff Sutton on the Sixth Circuit, Brett Kavanaugh on the D.C. Circuit, and Neil Gorsuch on the Tenth Circuit.

There are also some possibilities from state courts, including Allison Eid of the Colorado Supreme Court. She [clerked] for Clarence Thomas, worked at the Department of Education for William Bennett, and served as solicitor general of Colorado; I think she’d be an excellent pick.

[Editor’s note: Any brief discussion of potential Supreme Court nominees invariably leaves out a lot of highly qualified potential nominees.  If you’d like to point out some of the glaring omissions, suggest dark horse candidates, or express your opinion about potential Obama nominees, write to Curt Levey at clevey@committeeforjustice.org.]

On the importance of selecting the right nominee:

Levey: If you look at history, Democratic appointees to the Supreme Court can be relied on to vote the “right” way (from the perspective of the left) on the big divisive issues that we all care about. ...  Although Obama’s Supreme Court nominees will have their personal differences in philosophy, I don’t think the specifics of who Obama nominates will make much difference in what the court does. ...

On the Republican side, it’s the opposite. One can name various Republican appointees who have, if not a liberal voting record, such as justices David Souter and John Paul Stevens, at least a moderate record, such as justices Sandra Day O’Connor and Kennedy (and some might say John Roberts, particularly after he upheld the ObamaCare mandate, but I wouldn’t go that far). So whom Romney appoints would make a practical difference. ...

For Romney, there may be more scrutiny of whom he would appoint to the court because of the ObamaCare decision. Conservatives were starting to relax after the appointments of Alito and Roberts. They felt like Republican presidents had gotten the hang of selecting Supreme Court nominees with a conservative judicial philosophy. But then Roberts blew that confidence out of the water with his ObamaCare decision. We’re back to conservatives understanding that it can’t just be any conservative nominee; it’s got to be the right conservative nominee.

On whether the debate among conservatives over judicial restraint will influence the selection of Supreme Court nominees:

Levey: There is a division. To summarize, some conservatives would like the courts to be, not judicial activists in the “living constitution” sense, but vigorous in enforcing the Constitution given to us by the Founding Fathers. Then there are other conservatives who see deference to the legislature as at least one important aspect of judicial restraint.

Typically that debate has not played out in the selection of nominees. Conservatives have been fairly united on recent nominees, and they haven’t worried much about differentiating the two strains of conservatism that you described.

Often, let’s face it, there’s not much room for nuance in the judicial confirmation process. … People look at a nominee’s record; they see how he ruled or what he supported. If they think he reached the right outcome most of the time, they don’t worry about exactly what his judicial philosophy is—and that philosophy may not even be stated explicitly in his work. 

On whether Romney appointees would seek to overturn Roe v. Wade and what the ramifications would be at the state level: 

Levey: That’s hard to say. … I think the conservatives who are currently on the court are divided. I always thought Roberts probably wouldn’t overturn Roe v. Wade, and now, given what happened with ObamaCare, I’m virtually certain that he wouldn’t. Scalia and Thomas would. Samuel Alito probably would. Kennedy we know wouldn’t. ... 

So you have a wide range there, and I don’t know where Romney’s nominees would fall in that range. I’d say it’s 50-50 that a Romney nominee or any Republican nominee would vote to overturn Roe v. Wade.

To whatever degree Roe v. Wade is weakened by the court, that allows more discretion on the state level. If it were overturned, then states would have complete discretion over regulating abortion; if it were weakened, then states would have more discretion. ...

I find it hard to believe that any state would ban abortion under all circumstances, but you’d have a wide range of laws, which is basically what you had before Roe v. Wade.

You’d have big fights, and abortion would be a big political issue on the state level, whether it was decided by the legislature or by a ballot measure. The debate would affect election of state legislators and the governor. Abortion would be as big an issue on the state level as it is in most Supreme Court nominations. It would also affect nominations and elections to state courts;

On what the most important Supreme Court issues will be over the next decade:

Levey: Gay marriage, clearly [is one]. I’ve been saying for years, and we’re definitely getting closer, that there’s going to be a constitutional right to gay marriage eventually. That’s going to be the next Roe v. Wade.

There will be additional challenges involving ObamaCare. In addition to the [statute], there will be at least ten thousand pages of ObamaCare regulations. We’re already fighting over the requirement that religiously affiliated organizations provide insurance for birth control, including abortion-inducing drugs. And that’s just the beginning. I once wrote a Wall Street Journal op-ed anticipating what the fights over ObamaCare regulations might be, and I think that all still holds. … I think there will be a lot of big cases about the details and reach of the law.

Religious liberty, which is connected to ObamaCare, is a growing and unsettled area. We’re guaranteed to have continued fights in the Supreme Court over that issue. ...  [And] one can only imagine the legal fights that will be driven by the development of new reproductive technology.