It turns out that this will be Justice Stevens’ last term on the Supreme Court. Even if we see one liberal Justice replaced with another, the ideological balance of the Court is unlikely to change.
At least, on the surface.
One of Stevens’ strengths was building across-the-aisle consensus among dissenting Justices. He was often able to corral or curtail Justice Kennedy’s traditional swing vote, but a younger Justice will not have the ability to do so. As such, Kennedy’s role on the Court is about to become much more important.
His vote with the majority in the Heller decision showed a willingness to accept the 2nd Amendment at face value, and without anyone to sway him away, I’d guess we can expect him to rule in our favor in subsequent challenges.
I’m sure the 2nd Amendment will be a significant issue in confirmation hearings. How much of an issue, I’m not sure. After all, McDonald v. Chicago will likely be settled law one way or another at that point. Still, Tom Coburn’s on the committee, so expect to see nominees put on the hot seat about the matter.
The real 800lb gorilla in the room will be the Citizens United decision. This one created a rather large political divide, including a histrionic and inappropriate reprimand from the President during this year’s State of the Union address. There are still lingering questions of corporate personhood and free speech tied up in the issue.
Then there’s the spectre of the midterm elections. A number of Democratic senators, some on the Judiciary Committee, see their jobs on the chopping block. They’re already taking heat for their blind support of the Health Care Reform Bill, and rushing an ultra-liberal Justice through the process isn’t going to gain them any clout among constituents who are already seething at what they see as a far-left agenda.
For these folks, the midterm slogans will be characterized by words like “bipartisanship” and “moderate.” Traditional controversial issues like abortion, terrorism and judicial “activism” will be front and center. If they’ve got any sense of political self-preservation, they’ll do their best to confirm the most inoffensive candidate possible.
Which would be a win on several levels.