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Supreme Court to play key role in presidential, Senate races

Tom Fontaine
| Sunday, Feb. 21, 2016, 10:50 p.m.
In this 2010 file photo, the Supreme Court justices pose for a group photo at the Supreme Court in Washington. Seated, from left are, Justice Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Justice Anthony Kennedy, and Justice Ruth Bader Ginsburg. Standing, from left are, Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena Kagan.
In this 2010 file photo, the Supreme Court justices pose for a group photo at the Supreme Court in Washington. Seated, from left are, Justice Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Justice Anthony Kennedy, and Justice Ruth Bader Ginsburg. Standing, from left are, Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena Kagan.

With one vacancy and three justices 77 or older, the Supreme Court is likely to play a more prominent role in this year's presidential and Senate races than it has in decades, legal experts say.

“I don't think it has ever been as important in a presidential election,” said Arthur D. Hellman, a University of Pittsburgh law professor and federal courts scholar.

A political fight erupted in Washington within hours of news that conservative Justice Antonin Scalia died Feb. 13, leaving the bench with four justices who had been appointed by Republican presidents and four by Democrats.

Obama said last week that he would wait until the Senate returns to Washington on Monday to announce a nominee. Should his pick be confirmed, a majority of the justices will have been appointed by Democrats — including three by Obama — for the first time since May 1969. The last president to appoint three justices was Ronald Reagan, who nominated Scalia in 1986.

“We're at a historic moment. The court has been closely balanced for years, but now, with one of the most conservative votes gone, everything is wide open,” Hellman said.

“Issues that seemed unlikely to be reopened in the near future now face the possibility that they could be,” he said, referring to court decisions that could be overturned in cases dealing with the Second Amendment, campaign finance, religion and voting rights.

Some GOP lawmakers, including U.S. Sen. Pat Toomey of Lehigh County, warned that the Republican-controlled Senate likely would shoot down anyone nominated by Obama. Toomey, who is up for re-election, urged Obama to leave the nomination up to the next president.

Carl W. Tobias, a law professor at the University of Richmond and a scholar on federal judicial selection, said waiting likely would leave the Supreme Court without a ninth and potentially tie-breaking justice until the summer of 2017.

“I think (Toomey's) being insensitive to the needs of a co-equal branch of the government,” Tobias said, noting that cases ending in 4-4 ties could uphold a lower court's decision without establishing a nationwide precedent, or force the court to hear a case a second time when a ninth justice is seated.

“That's very wasteful,” Tobias said.

Casting further uncertainty on the future of the nation's high court is the advanced age of Justices Ruth Bader Ginsburg, who is 82; Anthony Kennedy, 79; and Stephen Breyer, 77.

But just as Americans' average life expectancy has risen over the years and now stands at 78.8 years, the average age of retiring Supreme Court justices has climbed. Since 1971, the 11 Supreme Court justices who retired were 78.5 years old on average when they did.

In that span, only Chief Justice William Rehnquist died while in office, a month shy of his 81st birthday.

Prior to 1971, the average retirement age for justices was 68.3 years, according to a Harvard Law Journal analysis.

Tom Fontaine is a Tribune-Review staff writer. Reach him at 412-320-7847 or tfontaine@tribweb.com.

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