Election May Cause Big Shift in Court Decisions

There hasn’t been a Democratic appointment to the Supreme Court since Stephen Breyer’s in 1994, and the next two or three vacancies are expected to come from the liberal side of the bench with John Paul Stevens, Ruth Bader Ginsberg, and David Souter tabbed as most likely to depart next.

The five-man conservative majority— John Roberts, Samuel Alito, Antonin Scalia, Anthony Kennedy, and Clarence Thomas—seems set to continue through another presidential cycle.

Democrats worry about the possibility of a Republican president replacing the liberals left on the court.

As a senator, John McCain was part of the bipartisan Gang of 14 that united to weed out some of President Bush’s more ideological judge selections.

The most intriguing McCain preference, given his Vietnam War background, would be Viet Dinh, a Harvard Law–educated former Justice Department official who was a key figure behind the USA Patriot Act. Dinh fled Vietnam for the United States in 1978, and his story of escape and survival—12 days in a boat with no food or water—almost rivals McCain’s in drama and courage. Sources say McCain is drawn to the escape narrative as much as to Dinh’s conservative ideology. Solicitor General Paul Clement would also be at the top of any short list.

For a new Democratic president, former solicitor general Seth Waxman is considered the next justice in waiting. He is a busy partner at Washington’s WilmerHale. But a President Barack Obama might appoint Massachusetts governor Deval Patrick to the high court.

To replace Ruth Bader Ginsberg, the almost-certain top choice for a Democrat would be 47-year-old Harvard Law School dean Elena Kagan, a former lawyer at Williams & Connolly, who once clerked for Obama legal hero Thurgood Marshall. She was a professor at the University of Chicago when Obama was working in law and politics there. She is also a favorite of Hillary Rodham Clinton’s, having worked in the Bill Clinton White House on domestic policy. Kagan is wired.

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This article can be found in the April 2008 issue of The Washingtonian.

Kim Eisler