One of the almost forgotten issues in the 2008 presidential campaign has been the opportunity the winner will have to name new Supreme Court justices. Five of the nine justices will be 70 years old or older when the 44th president takes office in January 2009.

Both parties were certainly aware of the potential for appointing Supreme Court justices in the next four years, but the issue was mostly lost in the lengthy debates over experience, the Iraq War, the bank and credit crisis and the candidates’ previous affiliations.

Age and health are two of the factors which will determine the number of court vacancies that will occur before January 2013, but they are not necessarily the only factors. Justices tend to retire while their party controls the White House and some have been known to hold on until their party can regain the presidency.

Republican Presidents Have Named Seven Justices

Republican presidents have named seven of the current nine justices. They presumably would not want to give Democrat Barrick Obama an opportunity to replace them, but they might be inclined to retire if Republican John McCain was in the White House.

Assuming Democrats retain control of Congress, Obama would probably have an easy time winning approval of his nominees. To win approval of his nominees, McCain might be forced to lean toward moderate Republicans.

At 88, Justice John Paul Stevens is the oldest member and has been on the court since President Gerald Ford appointed him in December 1975.

Justice Ruth Bader Ginsburg Is 75

Here, according to the U.S. Supreme Court website, are the other eight members, listed in the order of their ages:

  • Justice Ruth Bader Ginsburg, 75, of Brooklyn, New York. She was appointed by President Clinton in 1993.
  • Justice Antonio Scalia, 72, of Trenton, New Jersey, who was appointed by President Reagan in 1986.
  • Justice Anthony M. Kennedy, 72, of Sacramento, California, who was appointed by President Reagan in 1988.
  • Justice Stephen G. Breyer, 70, of San Francisco, who was appointed by President Clinton in 1994.
  • Justice David Hackett Souter, 69, of Melrose, Massachusetts, who was appointed by President George H. W. Bush in 1990.
  • Justice Clarence Thomas, 60, of Pin Point, Georgia, who was appointed by President George H. W. Bush in 1991.
  • Chief Justice John G. Roberts Jr., 53, of Buffalo, New York, who was appointed by George W. Bush in 2005.

Since Justice Thomas, a staunch conservative, is the court’s only Afro-American justice, it would not be surprising if Obama nominated a black Democrat.

The fate of the 1973 Roe-vs-Wade abortion ruling may be the most controversial issue facing any new justice, but in the next four years the court may also face crucial decisions on immigration, civil rights and ethics issues.

On his campaign website, McCain said he would “nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.”

Obama did not include the Supreme Court appointments as a separate issue on his website, but he called attention to a series of civil rights, immigration, poverty and ethics issues that may require Supreme Court decisions.

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