Editorial: High court should be big issue in election

2012-04-10T09:15:00Z Editorial: High court should be big issue in electionCorvallis Gazette-Times Corvallis Gazette Times
April 10, 2012 9:15 am  • 

Pesident Obama last week signaled his intent to make the Supreme Court a key issue in his re-election campaign — especially if the court decides to strike down all or part of the Affordable Care Act.

Your guess is as good as ours as to what the court will do with Obama’s key domestic-policy accomplishment.

But it likely would be a miscalculation for Obama to rip into the high court, especially if his administration suffers a stinging defeat when the court hands down its decision on the Affordable Care Act later this year. It’s hard to imagine how Obama could play that card without being perceived as a sore loser.

Nevertheless, there is a valid way for Obama to raise the issue — and it’s part of the presidential campaign that’s vitally important, and typically neglected in the heat and smoke of the campaign.

It’s a pretty simple question:

What sort of Supreme Court justice would President Obama appoint during his second term? And what sort of justice would his opponent (and let’s assume for the sake of argument it will be Mitt Romney) appoint?

It’s a particularly critical question now, especially if it’s true (although this is arguable) that the court is becoming more polarized politically.

After all, legal experts expect the court’s decision on the Affordable Care Act to come on either a 6-3 or 5-4 vote.

Here’s part of the reason why: Four of the justices serving are in their 70s. Ruth Bader Ginsburg is 79. Antonin Scalia is 76. Anthony Kennedy, supposedly the swing vote on a number of cases, is 75. Stephen Breyer is 73.

The court’s average age, actually, has been dropping as both Obama and President George W. Bush appointed justices in their 50s — hoping for appointees who can make a difference over the long run. (Three of the justices, in fact, are in their 50s, and two — Clarence Thomas and Samuel Alito — are in their early 60s.)

None of the current justices has announced plans to retire, but it’s not out of the question that the next president will get the opportunity to make enough appointments to the court to set its course for decades to come. And even one or two appointments could tip the balance one way or the other.

Obama has tipped his hand as to what sort of justice he would appoint with Sonia Sotomayor and Elena Kagan — solid, potentially liberal-leaning justices (although the high court’s history suggests that those ideological labels can become somewhat less important as a justice gains experience).

But a second term could give Obama the chance to make an additional two or three appointments. What sort of justices would he appoint? And what sort of justice would his Republican opponent seek to appoint?

These are vital questions. They’re worth detailed answers during the 2012 campaign — and they’re worth keeping in mind in November.

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