The oldest two justices — half the court's liberal wing — top the list of those considered likely to retire during the next presidential administration. Despite Stevens' and Ginsburg's apparent vigor, change on the Supreme Court is more likely than not over the next four years.Stevens is 88. Ginsburg is 75. Let's check those actuarial tables. I'm looking at the most recent life table from the National Center for Health Statistics. (PDF – 2004.) A white female who is now 75 has a life expectancy of 12.8 more years. So if Obama is elected and wins a second term, Ginsburg can outlast him and even the first term of the next President.
"One would think that over the course of the next four years the actuarial tables would catch up with the oldest members, as they do for us all," said Pepperdine University law professor Douglas Kmiec.
Now, Stevens is 88 and male. Surely, he can't hold on, you're thinking. But you are wrong. The life expectancy of a 90 year old white male is 4.3 years. 6.o for 85. So do the math. Looks like a good 5 years.
[Tom] Goldstein predicts only Stevens will retire during the next four years and not before he surpasses Oliver Wendell Holmes — who stepped down two months shy of his 91st birthday, in 1932 — to become the oldest sitting justice. That would happen in February 2011.It's funny to think of a man that old engaged in what seems like the rather childish behavior of record-setting. But if Stevens is into record-breaking, would he just try to beat Holmes by one day or would he try to set the most unbeatable new mark that he could? And what about that other record? William O. Douglas served on the court the longest: 36 years and 7 months. The man who took his comfortable seat was John Paul Stevens. The date: December 18, 1975. So he needs to go to July 19, 2011 to beat that record.
Think people will get fired up about Supreme Court appointments this fall? Perhaps not.
ADDED: I was just reading articles from the NYT archive about the Stevens appointment. This is from January 12, 1976, by C. Herman Pritchett, a polisci professor:
President Ford's appointment of John Paul Stevens to the United States Supreme Court continues and underlines the striking contrast between Republican and Democratic policies on Supreme Court selections.(Here's the PDF of the article, which you might have to pay for.)
Republican Presidents have consistently considered the Court as a law court, members of which should have past experience on lower Federal or state courts. Democratic Presidents have seen the Court as a policy court, and have consistently appointed to it men from public life with substantial experience.
Isn't it amazing to think how differently that would be written today? For one thing, someone who favored the Democrats' approach, as Pritchett does, would never concede that the Republicans see the Court as a "law court" and the Democrats see it as "policy court." You never even hear those expressions these days, and you don't even find the idea embodied in that term "policy court" presented in a positive light. Today, both sides claim their judges follow the law and accuse the other side's judges as importing policy preferences into the decisions.
Pritchett was looking at the record beginning with the constitutionally monumental year 1937. He acknowledges 3 big exceptions to the Republican pattern: Earl Warren, Lewis Powell, and William Rehnquist. He summarily discounts them: Eisenhower viewed the Warren nomination as a mistake, and Powell and Rehnquist were "spur-of-the-moment selections made by Mr. Nixon under great pressure." Of the 16 Democratic nominees, Pritchett counts only 3 that had judicial experience, and for 2 of those — Fred Vinson and Thurgood Marshall — it was "little more than an incident in a distinguished public career, and hardly figured as a factor in their selection."
Pritchett definitely thought the Democrats had it right. He cites Felix Frankfurter — who hadn't been a judge before he went on the Court — who supposedly made "a careful study of his predecessors" and "concluded that the relationship between judicial experience and success on the Court" — there's a soft variable! — "was absolutely zero."
Can you image the uproar if Barack Obama echoed Pritchett's views today?
IN THE COMMENTS: Bissage writes:
I’m just going to say this much: I strongly suspect that some of you people who think high-achieving people fight to retain their status because they live for the hope of seeing the downstream effects of their work have probably never worked for a high-achieving person.And this makes me realize I accidentally deleted a paragraph of my original post! I had intended to say that individuals who keep their jobs into old age have demonstrated to us that they are not the retiring kind. I would assume they love their work, live in it, and even believe that it keeps them alive, sharp, and in the world. You would do better to watch for people in their early 60s to retire, because these are the people who have not yet revealed whether they have a vision of themselves as retirees. An 88-year-old Supreme Court Justice doesn't look to me like someone who's just waiting for the right moment to retire.
I’m not saying that to start a ruckus.
I’m just saying.
Jim Lindgren says:
If Obama wins, I think Souter or Ginsburg will be first.I agree. Let him set a fine example of strength in super-old age. Is there some 50-year-old with more to give? Why would he think so?
Stevens is going strong and in great health. Why NOT set the record for serving the longest?