Right-Wing Paranoia About an Obama Supreme Court

| Thu Nov. 20, 2008 10:17 AM EST

The conservative legal powerhouse, the Federalist Society, is holding its annual convention in Washington this week. In past years, the group has had smug gatherings highlighting all of its many members who've been installed in lifetime appointments to the federal judiciary and into other top government jobs. It's crowning moment: the confirmation of longtime member Samuel Alito to the Supreme Court.

This year, though, the right-wing scholars and judges headlining the events seem a bit more subdued. Barack Obama has put a huge brake on their quest to remake the federal courts into bastions of conservative legal thought (and dashed the career plans of a new generation of conservative lawyers). Among the rank and file this morning, talk revolved around fear of the direction the Supreme Court might take under an Obama administration. There was wild speculation that Obama would be replacing moderate liberals like John Paul Stevens (who was actually appointed by Gerald Ford), with "radical leftists."

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Chief among those leftists, according to the banter, would be Lawrence Tribe, the famous liberal constitutional law scholar at Harvard law, who was also one of Obama's professors and now current advisor. Tribe represented Al Gore in the 2000 recount litigation before the Supreme Court and has a long line of Supreme Court arguments under his belt that include the famous case of Bowers v. Hardwick, in which he argued against Georgia's sodomy law (and lost). Bill Clinton reportedly passed him over for the high court in the 1990s, fearing he was too liberal to get confirmed by a Republican Congress.

But the Federalists should take a breath: Obama is not going to appoint Tribe. First off, Tribe is simply too old. At 67, he is already out of range. (By comparison, Chief Justice John Roberts is 55.) Not only that, but Tribe earlier this year had to cancel his spring classes at Harvard after being diagnosed with a benign brain tumor that required surgery. He may be brilliant, but his health and age simply make him ineligible. And for all the talk about an Obama court, so far, unless a sitting justice unexpectedly kicks the bucket, there's not likely to be an opening for quite a while. Even Stevens, 89, has hired clerks for the next October term, as have all the other justices, a sign that for the moment, none of them intends to give up their cushy jobs for retirement any time soon.