Following Presidential Election, What Will Happen to the Judiciary?
- Nov. 7, 2012
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Hundreds of stories of analysis and prediction will follow tonight’s result. Who will fill the president’s new cabinet? How will the lame duck Congress behave? The new Congress? How will the President’s actions change?
What will happen to the judiciary?
For most Americans, this means the U.S. Supreme Court, which counts four septuagenarians among its nine members. However, the federal judiciary appointed by the president and confirmed by the Senate includes 874 judges and justices.
Had Romney won, many of the 82 vacancies on the federal bench might have been filled with Republican talent; now, those will only add to the nucleus of Obama appointees, paving the way toward the future.
But on the Supreme Court, the Facebook page Women Rise notes: “Ruth Bader Ginsburg did not survive two bouts of cancer without missing a day on the bench so you could stay home watching Law & Order.”
Ginsburg, at 79, is the Court’s oldest justice. To many, she is the matriarch of liberal causes. Given her health, she’s most likely to retire in the next four years with a Democratic administration and Senate prepared to replace her with someone younger – like Justices Sotomayor and Kagan – who will serve on the Court for 25 to 30 years. Justice Kennedy, the Court’s consummate swing vote, and Justice Breyer, another counted on the left, might also consider retirement in their eighth decade on earth, but such is much less likely.
Had Romney won, speculators might speak of Justice Scalia. Now, Ginsburg’s will be the only name mentioned, if not expected.
Despite all this, it remains difficult to predict how a judge or justice will act prior to their appointment. There is no true litmus test, nor a concrete way of making these determinations; there’s only taking a chance and finding out.
The only constant is change: With technological change and adjustments to our laws as politics swing from side to side, judges will truly be a product of their times – foreseeable or not.