I believe that the next President will feel an extraordinary pressure... to name another woman to the Court, likely in a first appointment. In addition, I think that the next nominee will be non-white, and most likely Hispanic....You have to go back to this post to see why Goldstein is predicting the Souter to go first, followed by Stevens and then Ginsburg:
... I applied a birth date cutoff of 1952. Any nominee born earlier than that would be fifty-seven or older by the time of a post-election appointment in 2009....
The age cutoff presents a particularly difficult dilemma for a Democratic President. In 2009, it will have been more than eight years since a Democratic administration had the opportunity to groom candidates by placing them on the bench or in high-level positions in the Department of Justice....
I did not attempt to study many other important factors. For example, beyond reputation, I do not know much about these candidates in terms of their suitability for the job with respect to intellect and judicial philosophy....
Justice Stevens is 87. He seems in great health, but it is not reasonable to expect him to extend his tenure to age 93 (i.e., past the 2012 elections). Justice Souter is only 67. But he seems the most enthusiastic about leaving; he never embraced the job (or Washington, DC) as a lifetime commitment. Justice Ginsburg is 74. Many people say that she is in poor health, but I just don’t see that; it is easy to mistake her somewhat timid physical demeanor for broader health problems and she is certainly intellectually in top form. Nonetheless, one does get the strong sense that, having served 16 years by the time the next President takes office and facing the prospect of serving in the current environment until she reaches 80, Justice Ginsburg would very seriously consider allowing a Democratic President to nominate a replacement to be confirmed by a Democratic Senate.He thinks Stevens and Souter will leave even it a Republican wins (but Ginsburg will hang on if she can).
The consequences of two or three moderate-to-liberal seats turning over will be either minor (under a Democrat) or potentially massive (under a Republican)....
[I]f a Democratic President wins in 2008, the current conservative-leaning détente on the Court is likely to be enshrined for the indefinite future. Imagine if in 2009 Justices Stevens, Souter, and Ginsburg were replaced by Judge Garland (then age 57), former Solicitor General Seth Waxman (58), and Dean Elena Kagan (49); they would join Justice Breyer (71). On the right, you would have Scalia (73); Thomas (60); Alito (59); Roberts (54). And Kennedy in the center (for this Court) would be 73.
In that scenario, the potential range of movement in the Court’s jurisprudence would narrow dramatically. Only three Justices – one from the left, one from the right, and one in the center – would be at an age at which they would even be thinking of retiring. The other six Justices would be expected to serve at least 10 (and more likely 15 or 20) years.
In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades – i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high.
UPDATE: Tom Goldstein comments on the commentary and notes:
[T]hough the post dealt with Democratic nominees – the commentary was almost uniformly from the conservative blogosphere. There was nothing from sites on the left like Daily Kos, Talkingpointsmemo, and Balkinization. My point isn’t that the post was particularly insightful, but instead that interest in the subject of judicial nominees seems focused on the ideological right. No doubt there is something of an echo-chamber effect. The kind notes by Orin on Volokh and my law partner Paul Mirengoff on Powerline were likely noticed by the authors of other conservative sites. But the one-sided response to the post reinforces the commonly held view that conservatives recognize the importance of judicial nominations much more than do liberals.Does this mean liberals are not up-to-speed or are they just demoralized?
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I wonder what Laurence Tribe thinks of those age requirements.
Deval Patrick would be an unqualified disaster on the Supreme Court. Mr. Patrick's performance in the Clinton Justice Department earned him well-deserved criticism even from Democrats.
When Deval Patrick was campaigning for Governor of Massachusetts I would make fun of his campaign slogan 'Together we can'. But in all honesty looking around today, can anyone deny that 'Together we are'?
Stevens will retire exactly as soon as he feels like it. I really doubt he'd put much thought into who his successor might be.
I think it would be a huge mistake - tactically, at least - for the Dems to nominate a politician to the court, given how much they've invested in accusing the GOP of politicizing the courts. So that ought to knock the two Governors and the Senator off the list.
Nor can I understand why the first pick wouldn't be Walter Dellinger, regardless of his age, who seems superbly qualified to be a Democratic nominee and who strikes me as being among the less horrifying possible nominees.
Personally, I tend to think that no one who has not served on an appellate bench, state or federal, (or in the alternative, has clocked several years of writing and teaching) ought to be nominated by either party.
/Tangent:
Personally, I could live with a situation in a few years when we're seeing opinions headed with something like this: "Calabresi, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Thomas, Alito, Sykes, and Prakash, JJ., joined. Kagan, J., filed a dissenting opinon, in which Souter, J., joined."
(This assumes that Ann would not only not want but would not accept the nom).
Should be interesting, if Republicans own the courts for the next several decades or longer... what direction will the country turn? Will our country naturally follow the courts in a more conservative direction or will a new generation of liberals / libertarians / freedom advocates crop up and force America left? Also, is 2008 going to be a major turning point in history if the legislative and executive branch end up in Democratic hands?
A liberal Congress / Presidency is a lot closer than most people like to believe, legislation (the American people make the law) would then trump the courts (interpreters of our law). Although, if recent cases are any indication, it is possible that "precedent" may be overturned on many major issues which would then invalidate certain laws that Dems might want to put in action.
Only a few years ago, I was 100% certain that in thirty to forty years I'd get to witness the outcome of a more limited government molded by Christian values. Bush received great support from Evangelical Christians (that now feel he betrayed them) and they may get burned because of it. I don't think we've had that kind of government makeup in my lifetime, it is usually Republicans that get that swing. Only 8 of the last 28 years have gone to Democrats.
Oh, another name that ought to be on the list as a potential Democratic nominee who wouldn't be a total disaster: Akhil Reed Amar. And he's young enough, too.
It would seem that there are a number of very good possibilties. Why we had to have 2 off of Cheney's favorite list is beyond me. That alone would make anyone suspect.
The next administration is always billed as "the most significant opportunity to shape the direction of the Supreme Court for" [whatever/whenever] but rarely is.
Will our country naturally follow the courts in a more conservative direction or will a new generation of liberals / libertarians / freedom advocates crop up and force America left?
I'm not sure why either libertarians or "freedom advocates" are on that list. Certainly the conservative court will do things that offend both groups, but the liberal courts have done so for decades now.
A conservative court would, for example, be likely to scale back eminent domain powers, government-sponsored racial discrimination, restrictions on freedom of association, government regulations of private and corporate behavior, and laws restricting political speech and "hate speech". Liberals would hate those changes, but libertarians and other advocates of freedom would celebrate them. Most libertarians would also celebrate a return to federalism, even if the result was that some states became less free.
legislation (the American people make the law) would then trump the courts (interpreters of our law).
Hell, that's what conservatives have wanted for decades now. Indeed, the whole of the abortion controversy centers around the fact that legislation isn't allowed to trump the courts where abortions are concerned.
rev: very good point.
I wonder how Democrats and Republicans will handle their responsibilities as public officials if the tables turn? It seems like both sides are on unfamiliar grounds in that sense. :)
Assuming the Democrats retain Congress in 2008 (which is likely) and gain the White House (which is, in my opinion, unlikely, but let's just suppose), the most interesting aspect of the next Supreme Court nomination will be the use of the "nuclear option" of limiting the filibuster.
Republicans chickened out on using it the last time around, and are now probably thankful they did. But we've already seen that the press is firmly in the Democratic camp, spin-wise, when it comes to the use or disuse of the filibuster -- Republican filibusters of Democratic proposals have been routinely described in the press as "legislative tricks" and (amusingly) "restricting debate".
When the Democrats nominate an unacceptable candidate and the Republicans filibuster him or her, I fully expect the nuclear option -- which the press will, in an impressive feat of collective memory loss, suddenly discover is a much-needed blow for democracy -- will get used, so that Democratic candidates can be freely nominated and confirmed.
An additional bit of amusement here will be watching the two parties adopt each other's rationalizations for supporting/opposing the use of the filibuster.
Revenant said...
"[T]he most interesting aspect of the next Supreme Court nomination will be the use of the "nuclear option" of limiting the filibuster. Republicans chickened out on using it the last time around, and are now probably thankful they did."
Well, the mere fact they didn't formally eliminate it doesn't mean that it's still on the table, IMO. While the Dems control the Senate, the nuclear option is vestigial for a political generation: like the power of the British monarch to refuse Royal assent to any bill, it is a power that exists in the realm of theory alone. Both parties staked out such strong positions in the last Congress that Republicans will be hard-pressed to filibuster and Democrats will be hard-pressed to complain. Each side now has political MAD over the filibuster. (Which is, by the way, one of the reasons why I argued again and again at the time that while the nuclear option was possible as an exercise of raw political power, it was not only flawed as a matter of Constitutional law but profoundly shortsighted as a matter of practical politics.)
Both parties staked out such strong positions in the last Congress that Republicans will be hard-pressed to filibuster and Democrats will be hard-pressed to complain.
The Democrats might be in a bit of trouble, since the railed so long and hard against the nuclear option. On the other hand, the press will be on their side, and most of the American public never really paid any attention to the details of the debate the last time around. I think they can get away with it.
The Republicans, on the other hand, can simply rely on the classic "they did it first" excuse. The fact that most Republican supporters only really oppose filibusters that block things *they* want will ensure that they don't catch any flack from that corner. Note, for example, the distinct lack of Republican bitching over the votes against cloture for the immigration and timeline-for-retreat bills.
Rev -
I suppose they could be shameless enough to try it, and I expect that either side would be chewed to ribbons by the blogosphere if they tried it. Of course, I would add that while both sides would be hypocritical in that eventuality, the GOP would be hypocrits who have seen the light. Needless to say, since I thought the Democrats acted within the rules to filibuster Bush nominees (which is not to say I supported the filibuster, needless to say), I would support the GOP filibustering a potential Clinton nominee. (I suppose the bright side of losing the Senate is that a position I took at a time when it cut against my interests will now, if maintained, cut in favor of my interests. ;))
"Note, for example, the distinct lack of Republican bitching over the votes against cloture for the immigration and timeline-for-retreat bills."
They can get away with that because they were careful to distinguish at the time - not entirely implausibly in terms of Senate history - between filibustering nominees vs. filibustering legislation (the technical distinction being between matters on the executive calender vs. matters on the legislative calender).
Simon,
I'm hard pressed to think of a political principle the Republicans *haven't* cheerfully betrayed when it served their political interests to do so. The same holds true for the Democrats, of course.
Even if we assume that the Republicans had a *principled* objection to filibustering Supreme Court nominees in the first place (as opposed to just being annoyed that the Democrats were interfering with them), why should they stick to that? They haven't stuck to federalism, small government, self-imposed term limits, or pretty much anything else they claim to believe in.
"They haven't stuck to federalism, small government, self-imposed term limits, or pretty much anything else they claim to believe in."
Some of us have. ;)
I have actually done an analysis of all the failed Supreme Court nominations:
http://gahrie.blogspot.com/2007/07/us-supreme-court-nominations.html
Republican Senators always defer to Democratic presidents,(no Democratic nomination in the 20th century has received more than 22 no votes in the Senate, and that was Brandeis in 1916) and the only four nominations rejected by the Senate in the 20th century were by Republican presidents. In fact the only Democratic Supreme Court nomination to fail for any reason in the 20th century was LBJ's attempt to elevate his political crony Abe Fortas from Associate Justice to Chief Justice. His nomination was withdrawn after charges of corruption. (and n fact Fortas would be later forced to resign as Associate Justice after further charges of corruption.
I have also written a second post dealing with how the parties deal with Supreme Court nominations.
http://gahrie.blogspot.com/2007/07/us-supreme-court-today.html
Some of us have. ;)
By "they" I meant "Republican Congressmen", not "Republicans in general". You may be a principled person, but can you name a similarly principled member of Congress? Even Ron Paul porks it up now and then.
What? Dr. No and Pork? NEVER! I refuse to believe it.
But the one-sided response to the post reinforces the commonly held view that conservatives recognize the importance of judicial nominations much more than do liberals.
Does this mean liberals are not up-to-speed or are they just demoralized?
I disagree with this completely. In fact I think an analysis of actual behavior will show that liberals and liberal special interest groups decided long ago that judicial nominations are extremely important. (at least as far back as the Supreme Court nomination of Judge Bork) I would argue that liberals ignored this article because there is nothing new here, they take its assumptions and conclusions for granted.
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