Pam Spaulding

The age of the U.S. Supreme Court - who will retire?

Filed By Pam Spaulding | December 04, 2008 11:00 AM | comments

Filed in: Politics
Tags: Anthony Kennedy, Antonin Scalia, Clarence Thomas, David Souter, John Paul Stevens, John Roberts, retiring justices, Ruth Bader Ginsburg, Samuel Alito, Stephen Breyer, Supreme Court, US Supreme Court

John @ Americablog posted the current SCOTUS bench, noting only two were nominated by a Dem:

  • John Paul Stevens, 88 (Ford)
  • Ruth Bader Ginsburg, 75 (Clinton)
  • Antonin Scalia, 72 (Reagan)
  • Anthony Kennedy, 72 (Reagan)
  • Stephen Breyer, 70 (Clinton)
  • David Souter, 69 (GHW Bush)
  • Clarence Thomas, 60 (GHW Bush)
  • Samuel Alito, 58 (GW Bush)
  • John Roberts, 53 (GW Bush)

The Bushes added relative youngsters on the bench, all save Souter are firmly on the conservative side of the spectrum. The core liberals Ginsburg and Stevens (poor man -- at 88 he must have prayed nightly for a Dem president) are likely to step down during Obama's term, so there won't be any gains for progressives there. I haven't heard anything about fellow liberal Breyer regarding retirement.

Scalia is so too evil to kick it or retire any time soon, so the sure pickup possibility to sway the court to the left is if Kennedy retires. Of course even keeping the status quo politically is preferable to what would have become of the court had McCain set up shop in the White House. The professional "Christian" set probably had a list of mandatory first choice candidates for the failed GOP contender for SCOTUS.

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Unfortunately, the court's two most progressive members - Ruth Bader Ginsburg and John Paul Stephens - will likely be the first two to go. It will take a while for a truly progressive high court to emerge. For the next few years, we're likely to see the left side of the bench replaced with like-minded justices.

Whoever goes first, there are some names that should be at the top of Obama's "potential nominees" list: Kathleen Sullivan, a protege of Laurence Tribe; and David Tatel, who currently resides on the Court of Appeals on the D.C. Circuit; and Justice Sonya Sortomayor, who currently resides on the 2nd Circuit court of appeals. Any of the three would be outstanding choices to put on the U.S. Supreme Court.

By most accounts, Stevens and Ginsburg will leave the court, probably at the end of the next couple of terms. However, the rest are all in good health, by most accounts. Breyer and Souter, the other moderate/liberals, are apparently healthy. 70 isn't that old these days, if the person involved takes care of themselves, and SC justices have the finest health care available.

I don't see Anthony Kennedy leaving, nor do I see him as a doctrinaire conservative. He's an interesting Justice, actually. He has a personal goal of using foreign legal precedents as standing precedent for SC rulings, a concept that is reviled by Scalia, who is the leader of the Gang of 4 (Thomas, Roberts, and Alito). Kennedy normally spends his recesses abroad, and frequently speaks before international law organizations in Europe and participates in law conferences. He is in his low 70s, but works out and takes care of himself. He is a moderate swing vote, in the mold of a Lewis Powell or Potter Stewart. Keep in mind that he was the deciding vote in Lawrence v. Texas. Even though I'm a liberal, there is a place on the Supreme Court for people with Kennedy's open

I'd say Roberts is the most likely to need replacing, given that he has a history of seizures. One of them could result in brain damage, an accident, or a stroke. Of course, Scalia likes to go hunting with Dick Cheney.....

If Obama gets 8 years, you'd have to think that one or more of the 70-somethings might choose or be forced to retire in his second term. Just as Ginsburg and Stevens have waited to leave until a more moderate President was elected, you can bet that the Gang of 4 conservatives might try to wait out Obama. Bill Clinton stocked the Federal bench with a diverse group of judges, and there are many good moderate to liberal judges on state supreme courts as well. Obama seems to have a good touch for choosing good people.

Well, there's the supreme court, and then there are the lower courts. I'm guessing we'll see a wave of retirements over the first months of Obama's administration.

The gang of 4, though, well, they might not make it to the end. Chances are one will kick it.