- The Washington Times - Thursday, November 12, 2015

Conservatives unhappy with U.S. Supreme Court rulings on same-sex marriage and Obamacare heard a powerful argument Thursday for defeating Hillary Rodham Clinton: The next president could appoint as many as four justices.

When the next president takes the oath of office in January 2017, three current justices will be at least 80 years old: conservative Antonin Scalia (80), swing voter Anthony M. Kennedy (80) and liberal Ruth Bader Ginsburg (83). Liberal Justice Stephen G. Breyer will be 78.

During a Federalist Society discussion on the first 10 years of the court under Chief Justice John G. Roberts Jr., lawyer Michael Carvin said the Supreme Court has made “baby steps toward the return to the rule of law” in the past decade, despite dissatisfaction by many conservatives.

“If the election goes wrong next year, none of that will matter and we will all descend into a hellish existence from which we will never emerge,” Mr. Carvin said to laughter from the crowd.

Mr. Carvin was the plaintiffs’ lead attorney in challenging the Affordable Care Act in King v. Burwell, in which the court upheld Obamacare subsidies.

Michael Paulsen, a professor at the University of St. Thomas School of Law, said the next president will have an opportunity to institute “meaningful changes” on the court.

“Ideology matters,” Mr. Paulsen said. “Judicial philosophy matters. Sometimes it’s literally a matter of life and death who you appoint to the Supreme Court.”

He cited as an example Republican President George H.W. Bush’s appointment in 1990 of Justice David H. Souter, who turned out to be a liberal jurist. Mr. Paulsen said he believes one consequence of the Souter appointment was to keep abortion legal.

“It makes a world of difference, for example, that we ended up with David Souter rather [than conservatives] Edith Jones or Laurence Silberman in 1990,” Mr. Paulsen said. “If you had Edith Jones appointed by a Republican president, I think Roe v. Wade is overruled by a vote of 6-3 or 7-2. It’s a difference in terms of saving millions of lives.”

Jan Crawford, who covers the Supreme Court for CBS News, said the next president “could well get two, three, possibly four appointments.”

“John Roberts has been frustrating for many conservatives,” Ms. Crawford said. “[But] if a Democrat wins the White House, John Roberts may well be writing a lot more dissents on the other side.”

Mrs. Clinton reportedly told supporters at a fundraiser last week that the Supreme Court is “wrong on the Second Amendment” and said she would work as president to reinstate a ban on assault weapons. Her comment was an apparent reference to the Supreme Court’s 2008 decision in District of Columbia v. Heller, which ruled that the handgun ban in the nation’s capital was unconstitutional.

Justices Breyer and Ginsburg, who along with President Obama’s appointees Sonia Sotomayor and Elena Kagan make up the court’s liberal wing, were appointed by President Clinton.

Most of the panelists at the Federal Society’s annual gathering said it’s too soon to label the Roberts court from a political or legal perspective.

Mr. Carvin said the court has been a “mixed bag,” with conservative victories such as the Citizens United ruling in 2010 that eliminated a ban on independent union and corporate campaign expenditures, and losses such as this year’s ruling that legalized same-sex marriage, which he called “about as lawless as you could be.”

They agreed that President George W. Bush’s appointment of Justice Samuel A. Alito Jr. to replace Justice Sandra Day O’Connor has been more consequential for conservatives than Mr. Bush’s selection of Justice Roberts to replace Chief Justice William H. Rehnquist.

“Justice Alito has been, from President Bush’s perspective, the home run,” Ms. Crawford said.

Mr. Carvin said of Justice Alito: “You had a principled conservative replacing a sort of suburban Republican state legislator. You got some continuity in the law and some principle in the law.”

When the next president prepares to vet Supreme Court nominees, Mr. Paulsen said, it’s entirely appropriate for the White House team to ask about a candidate’s political philosophy.

“Of course you can know how these individuals will be as justices on the Supreme Court,” he said. “Give me 10 minutes with a prospective nominee, and I’ll tell you how they’re likely to be [voting] on the Supreme Court. You can tell in advance the difference between a Scalia and a Souter.”

• Dave Boyer can be reached at dboyer@washingtontimes.com.

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