Wednesday, February 15, 2012

President Obama's next Supreme Court Justice pick.

SCOTUSblog has a post speculating on who will be President Obama's next nominee for the Supreme Court. The post also, helpfully, speculates as to who the nominee will be replacing given that there are no vacancies on the court.

The post informs us that "the odds are good that Justice Ginsberg will retire in the third year of the second Obama term." The post specifically declaims that Justice Ginsberg's bouts with cancer are the reason for this as-yet-unannounced plan to resign. Instead, Justice Ginsberg (who is Jewish) will retire in 2015 because Justice Brandeis (the first Jewish supreme court justice) retired at 82. Also, both Justice Ginsberg and Justice Brandeis were appointed to the court at the age of 60. So, I guess they have to retire at the same time. I am not sure if the retirement would be an homage to Justice Brandeis or if the retirement is dictated by either statute or talmudic law.

In further support of the retirement prediction, the author writes, "Justices tend to retire strategically to permit ideologically sympathetic presidents to name their successors." The article doesn't point to any examples of this. Probably because it isn't true. If one looks at the list of Supreme Court Justices , there have been a total of 112 justices on the Supreme Court. Obviously, 9 of those justices are still serving. So, we have a total of 103 justices who left the court.

49 of those justices didn't leave voluntarily, they died while serving. I am going to assume that justices that died during the presidency of an "ideologically sympathetic president" did not die in order for that president to appoint a successor. After all, if those justices wanted to let that president get a nomination they only had to resign, not kill themselves. I leave to Mr. Torvik to uncover evidence of presidents having ideologically sympathetic justices killed.

Of the 54 justices who didn't die in office, how many resigned during the tenure of an ideologically sympathetic president? The shorthand way of looking at this is to look at the political party of the president who appointed the justice and the president who appointed the replacement. The problem is that this approach doesn't account for people like David Souter, a Republican-appointed justice whose views might be regarded as being more ideologically sympathetic with the person who appointed his replacement, President Obama. Nor does that approach take into account people like William Brennan, a Republican-appointed and Republican-replaced justice who is considered to be a liberal and so his resignation arguably didn't coincide with the term of an ideologically sympathetic president. It also doesn't cover John Rutledge, whose recess appointment to chief justice was rejected by the Senate.

However, in the interest of brevity, I will adopt the general approach that party membership suggests ideological sympathy (excluding Rutledge as, like death, his rejection was beyond his control). Of the remaining 53 resignations or retirements, 26 were made during the tenure of a president that belonged to the same party as the president who appointed the justice. That means 27 resignations occurred when the presidency was in the hands of a different party than the one that appointed the justice. From this, I don't see how we can say that it is a "trend" for justices to retire shortly before the end of an ideologically sympathetic president's term.

If anything, the examples of Hugo Black, William O. Douglas, Stephen Field, Oliver Wendell Holmes, Jr., Thurgood Marshall, and others indicate that justices don't step down until their poor health makes them.

As for the speculation as to who is going to be President Obama's next nominee, the author thinks it will a woman belonging to an ethnic minority. You and I, Mr. Torvik, are out of luck.


  1. For what it is worth, this is wrong. Of the ten retirements in the last quarter century, eight retired under an ideologically sympathetic President. So the post above gets Stevens, Souter, and Blackmun wrong -- each appointed by a Republican and retired under a Democrat, plainly on the Court's left -- because of the facile and wrong presumption that at retirement Justices share the ideology of their appointing Presidents. The two exceptions are Marshall and Brennan -- Marshall felt too sick to continue and Brennan was told by his doctor the day he had a stroke that he had to retire, and he did immediately. There is no question that both would have retired under a Democrat if s/he had the choice. The one who died in office -- Rehnquist -- believed he would recover and knew that if he didn't a Republican would appoint his successor.

  2. Thanks for commenting Anonymous. To address some of your points, I think I pointed out that using political party as a way of addressing ideological sympathy was problematic. In fact, I pointed out that Justices Souter and Justice Brennan were examples of why that approach was problematic. But if the "trend" is to simply look at the behavior of the last 8 resignations out of 53, that is a very poor statistical approach.

    Even if this was a valid way to assess a trend, the trend isn't 6-2 as you suggest. It isn't very hard to make an arguemnt that Sandra Day O'Connor and Byron White both resigned from the Court under presidents that didn't share their ideological sympanties. Justice White's views in criminal law and abortion cases were not those of the Democratic Party. Similarly, Justice O'Connor's views on affirmative action, abortion, equal protection for homosexuals, and campaign contributions were not those of the GOP. Add those to the two exceptions you mention and the total on the 8 resignations is 4-4. I submit that 4-4 isn't a trend.

  3. Supposedly O'Connor expressed reluctance to retire under a Democratic president:

    I'd argue that if the justices were really very concerned with the ideology of their successors we'd see them retiring much younger, when their chances of sudden death were much smaller. I think it is clear that the justices' primary motivation is to keep that unbelievably sweet, easy gig for as long as possible.

    Anyhow, here's another suspect trend identified in Mr. Goldstein's post: "In the modern era, incumbent Presidents tend to be re-elected. George W. Bush, Bill Clinton, and Ronald Reagan were, though George H.W. Bush and Jimmy Carter were not."

    So, three to two. And if you go back one more year, you get Gerald Ford: tied at three. (Though perhaps Ford doesn't count, since he was never elected.)


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