The situation on the Court, as viewed by Ruth Marcus, writing in the Washington Post:
President Bush or his Republican successor, if there is one, could soon have the chance to cement the impregnable court majority that has long eluded conservatives. By contrast, the election of a Democratic president in 2008 would probably merely halt the court's steady drift rightward. Unless the vacancy comes from an unexpected quarter, the best a Democratic president could hope for is maintaining the current conservative tilt -- and even that could be optimistic.
This is a simple function of age. The justices who are oldest and therefore most likely to leave are also the most liberal: John Paul Stevens, 86, and Ruth Bader Ginsburg, 73. (Stephen G. Breyer is 67, David H. Souter, 65.) If the Senate does not change hands (and maybe even if it does) a Democratic president's chances of getting a justice as liberal as Stevens confirmed are slim -- especially in an age when the filibuster is considered a legitimate weapon in the judicial wars.
By contrast, it's far less likely that the next president -- or even two -- will have a vacancy left by a conservative justice to fill. Of the four reliable conservatives -- leaving aside the 69-year-old Kennedy -- the oldest is Antonin Scalia, 70. The other three (the new chief justice and Justices Clarence Thomas and Samuel Alito) are in their fifties.
Ms. Marcus focuses soley on the question of power: who is likely to have the most votes in the years ahead. She doesn't mention that the conservatives not only have youth on their side, but intellect. Despite the campaign against Thomas's reputation that has continued unabated since his nomination, Thomas is far brighter than anyone on the Court's left with the possible exception of David Souter. About the remaining three, there is no doubt: they are some of the most intelligent and learner men ever to sit on that bench.
Morever Roberts, unlike Scalia, is neither lazy nor prone to arrogance. I suspect that he will dominate the Court in years to come out of proportion to the number of conservative judges.
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