The Law Today: The Calculations for a Supreme Retirement in the Age of Obama

This commentary stems from an article by Bill Scher published at RealClearPolitics.com

In his piece, Mr. Scher reflects, quite well, on the political landscape of the “swing vote” on the Supreme Court and the way in which it is affected by the parties controlling the White House and the Senate chamber. The article begins by dealing with the oft-cited argument that Justice Ruth Bader Ginsberg should resign during the Obama administration in order to give the President a seat he could fill with a younger, like-minded, Justice. Justice Ginsberg, herself, has forthrightly denied any aim to retire from the bench so long as she can continue to effectively adjudicate cases. Barring any judicial health scare from Justice Ginsberg, or any of the other Justices on the Court, Scher’s piece turns to look at the retirement of Justice Anthony Kennedy, the current swing vote on the Court in most, if not all, of the recent 5-4 decisions.

Scher’s point, and one that is well-taken, is that, in the coming political climate in Washington, with a significant Republican majority in the Senate, any judicial nomination coming from the White House will be absolutely barred if he or she has any taint of ideology.

Most conservatives will flatly deny that any Obama appointment to the Supreme Court should be allowed in the next two years. Some would urge that, even if a vacancy were to occur, that no action be taken on that position until a new president is chosen. This leeriness towards a third Obama pick on the Court is well-taken. Given conservatives’ well-founded and justified oppositions to both Justices Kagan and Sotomayor, there will likely be an intense backlash against any appointees for the High Court going forward.

However, my point in writing is not to argue for capitulation to the Obama administration on a future Supreme Court nomination but to look at the political realities in 2016 and their potential impact on the Supreme Court.

The Democratic Party is poised to do very well in 2016. Already distancing themselves from the Administration, the “liberal tea party” factions have begun to grow. Spearheaded by voices like Nancy Pelosi and Senator Elizabeth Warren, the minority party has begun to cut a new path, separate from the Administration’s. While some of the outrage may be in earnest, the posturing is, far more likely, geared towards the issues that will be on the minds of 2016 voters.

Down to the numbers. When the Senate convenes in 2015, the Republicans will have a 54-46 majority (unless independents choose to side with the majority, which it does not appear that they will). However, in 2016, there will be 34 Senate seats up for reelection. Of those 34, 24 are Republicans. Many of these Senators came to power during the Tea Party wave in 2010. They are first-termers with vulnerable seats. If we add to this the likely consequence of a liberal wave (as the minority party, they don’t have to push policy, just soundbites) and the potential of “the first female President,” there is a potential that there will be a particularly high Democrat turnout. The consequence is that, the Republicans, already spread thin, will pool money in the most winnable races and lose control of the Senate. If we add to this a Democrat Presidency, a nomination to fill the vacancy left by the retirement of any justice from the Supreme Court will be seen as spoils of war.

In the end, we are left with a bit of a gamble. If Justice Kennedy were to retire from the Court, his replacement would, definitively, be a moderate. Though this has rounded time-and-again against Republicans who, dumbfoundingly allowed Justices to take positions on the Court who then tended against their professed ideas, we can still hope that a future nomination could be beneficial.

Would this effective preservation of the status quo on the Court be better than the gamble of waiting for the next administration? That’s not a question I can answer. Certainly a possibility exists that my 2016 predictions are incorrect. After the 2014 Omnibus Spending Bill raised the amount that individuals can donate, perhaps there will be enough money to fund all 24 Republican Senators up for reelection. However, the reality is likely that the Republicans will suffer some losses of seats.

In the end, this is a case of the “devil you know versus the devil you don’t know.” The Court is divided on age lines as well as political ones. As of the time of writing this article, the ages of the Justices are:

Justice Date of Birth Appointed by Sworn in
Antonin Scalia 3/11/1936
Age: 78 yr 9 mo
Ronald Reagan 9/26/1986
Served: 28 yr 2 mo
Anthony Kennedy 7/23/1936
Age: 78 yr 4 mo
Ronald Reagan 2/18/1988
Served: 26 yr 9 mo
Clarence Thomas 6/23/1948
Age: 66 yr 5 mo
George H. W. Bush 10/23/1991
Served: 23 yr 1 mo
Ruth Bader Ginsburg 3/15/1933
Age: 81 yr 9 mo
Bill Clinton 8/19/1993
Served: 21 yr 3 mo
Stephen Breyer 8/15/1938
Age: 76 yr 4 mo
Bill Clinton 8/3/1994
Served: 20 yr 4 mo
John G. Roberts 1/27/1955
Age: 59 yr 10 mo
George W. Bush 9/29/2005
Served: 9 yr 2 mo
Samuel A. Alito, Jr. 4/1/1950
Age: 64 yr 8 mo
George W. Bush 1/31/2006
Served: 8 yr 10 mo
Sonia Sotomayor 6/25/1954
Age: 60 yr 5 mo
Barack Obama 8/8/2009
Served: 5 yr 4 mo
Elena Kagan 4/28/1960
Age: 54 yr 7 mo
Barack Obama 8/7/2010
Served: 4 yr 4 mo

From: http://www.thegreenpapers.com/Hx/SupremeCourt.html

While we all wish the Justices good health and long lives, the reality that, in the next ten years, the average age of a Supreme Court Justice’s retirement is 78.7 (http://www.washingtonpost.com/blogs/the-fix/wp/2014/04/21/everything-you-didnt-even-think-you-wanted-to-know-about-supreme-court-retirements/).

Playing with this number, we can see that only Justice Ginsberg and Justice Scalia are over this average age. However, during the last two years of the Obama Administration, Justice Kennedy will hit the mark. Justice Breyer will follow a few months after that. Interestingly, no other Justices will approach that threshold during the next administration, even if it is for two-terms.

Thus, within the decade, we can anticipate that four seats will come open on the Court. The two polar positions of Justices Scalia and Ginsberg should come open along with the midpoint of Justice Kennedy. Justice Breyer’s eventual retirement would “tip the balance” in the event he was replaced with a member of the “other side.”

Thus, we can see that, over the next decade (coming from the last two years of the Obama Administration and the assumed eight-year Presidency to follow), liberals “technically” have more to lose on the Court than do conservatives (barring unexpected or unfortunate events). However, in the event that a liberal President and Senate have full reign over the nominations, there will be a shift by either one or two Justices towards that side of the Court.

The realities of such a shift would completely entrench the power of the Court regarding social issue policies being made by the Court (i.e. not allowing controversial issues to be decided by voters), would significantly hamper efforts to repeal or reform the ruinous Affordable Care act, would create a difficult business climate in the country, and would significantly damage religious expression writ-large. Is this fear mongering? Certainly a bit. Despite ideological differences with members of the Court, I sincerely respect the intelligence and acumen of each Justice. However, the Justices, just like everyone else, have their ideas. Judging by the votes on issues before the Court, it appears clear that the aforementioned consequences of a liberal majority Supreme Court would produce those results.

So, in summary, it comes down to how you think 2016 will play out: if you think the Republicans can recapture the White House and maintain the Senate, you should oppose any retirement of any Justice on the Supreme Court for the next two years. However, if you feel that there will not be enough money or political talent in the Republican pool in 2016, you should hope that a Justice resigns now in order to allow the Republican Senate to act as a moderating buffer to rubber stamping a liberal member of the Supreme Court.

You should note that this analysis is also a prelude to what issues will be of the most importance in the 2016 elections. While most people usually do understand that there are potential Supreme Court consequences for their vote, the numbers regarding the Court’s makeup and the ages of Justices should be a central issue in deciding the way in which voters should select the next President and Senator.

Matt McDaniel

Attorney and Political Commentator

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