Potential US S.Ct. vacancies

Not sure this is a debate, but I post here as it touches on things debatable.

One reason I’m voting for Obama is so that a conservative does not get to push the S.Ct. further to the right. But I didn’t really know which justices were likely to retire other than knowing Stevens is quite old. I looked up their ages, and found:
Stevens 88
Ginsburg 75
Scalia 72
Kennedy 72
Breyer 70
Souter 69
Thomas 60
Alito 58
Roberts 53
Looking elsewhere I read the 3 considered possibly retiring are Stevens due to his age, Ginsburg for health issues, and Souter for unspecified reasons. Well, seeing as those 3 tend to vote on the more liberal sides of S.Ct. decisions, even if all 3 of them retire, Obama will merely have a chance to keep things as they are, rather than really change the dynamics of the court, no?

For purposes of this thread, I’m using the general terms liberal and conservative assuming most people can discuss this topic using these terms, rather than debating whether specific judges are best described as strict constructionists, activists, or any number of other possible terms.

In addition, no way Scalia lets a Democrat fill his seat so the next oldest conservative justice is Thomas at only 60 (in 8 years he will STILL be younger than the youngest liberal justice is NOW).

At best, Obama only shores up the liberal wing. Which I guess is still light-years better than the alternative.

Replacing Kennedy (72) with a more liberal justice would also change the balance of the court. I don’t think he has any immediate plans to retire though.

I was just thinking about this on my own at about the same time you were posting the OP. Probably because I picked up a copy of USA Today that was lying around and saw their front page article on Supreme Court nominations.

I had this thought that, probably a week and a half after Obama wins the Presidency, Stevens goes on Meet The Press and announces that, effective January 21st, 2009, he’s retiring from the Supreme Court. It would be one heck of a way to shake up the “first 100 days.”

Here’s something interesting from Wikipedia:

I’m somewhat surprised that Scalia did not retire during the Bush administration. Based on current trends, it seems likely that he’s passed up his best chance to guarantee that he got replaced by another right-winger.

I do agree that Stevens will retire early in the Obama administration, but probably not in the first few months. Better to let things get settled before forcing the Democrats to wage a fight for a Supreme Court nomination.

I get the impression that Scalia is one of those guys who is clearly convinced that he is the most brilliant person in the world, and that no one could possibly do as good a job as he. So I don’t look to see him willingly passing the torch anytime soon. I was heartened, however, to see that he was as old as he is.

OTOH - man, we are going to have Thomas, Alito, and Roberts around for a long time!

Anyone know anything about why Souter is rumored to want to retire? I see the rumors have been out there for several years, but found nothing other than a desire to move back to his home in NH.

That surprises me as well. Although Scalia and Kennedy don’t appear to have any intention of retiring, four years is a long time when you are 72, and eight is longer.

I just wish Roberts and Alito weren’t so young. sigh

It is a mistake to think that Obama’s replacing liberal justices cannot change the dynamics of the court.

First, a great many close legal issues do not fall on a left-right spectrum. In a few areas, Scalia sides with Ginsburg against Stevens and Roberts. So even if changing the players doesn’t change the overall 5-4 liberal-conservative balance, it can absolutely change results.

Second, when you have nine people making decisions in close quarters, personalities matter. Does anyone think Thomas’ jurisprudence would be the same if instead of Scalia the court had George W. Bush? Putting someone like Laurence Tribe on the court in place of Stevens (not gonna happen because of Tribe’s illness, but a good example) may well change the dynamics.

Supposedly he just doesn’t like the job. I haven’t heard much more than that. It is a grind.

Ginsburg (outside of a handful of issues) and, to a perhaps lesser extent, Souter, while certainly on the left wing of the Court, are pretty centrist. So it’s well within the realm of possibility that their replacements by a Democrat would move the Court left. And certainly that would be the case if Breyer were to leave as well. So the abortion cases would still end up 5-4’s, but there might be other cases (such as appropriate levels of private regulation of industry) which go from what would be a 6-3/7-2 with the current justices to a 5-4 in the other direction. (This Court is very business-friendly. I don’t generally disagree with this stance, but it’s centrist at best.)

Oh, as to Scalia – it’s been some time since I last encountered him, but I’ve met the guy a few times and he generally looks about 10 years younger than he is. I expect he’ll remain on the Court a looooong time still.


My Constitutional Law professor is all but certain that Ginsburg will leave first, followed by Stevens, and he thinks that the nominees to replace them will be Sonia Sotomayor and Cass Sunstein. Take that for what it’s worth. I don’t see either of them as bad picks.

Sunstein is working pretty closely with the campaign, so that would make sense. Except he is married to Samantha Power, and she may not want to go to DC. Marriages have stopped more than one potential Justice from accepting the offer, so this is not an insignificant consideration.

Sotomayor would be a somewhat centrist pick for Obama. He would probably take some heat from the left for it. He could put her up in exchange for someone more liberal as a second pick, I guess, which would mean not Sunstein. If he picked Sotomayor, I would think the next pick might be Eric Holder or Kathleen Sullivan. Neither of which are as liberal as Ginsburg, I don’t think, but probably more liberal than Sunstein or Sotomayor.

The exact same William Rhenquist mindset. Hopefully, he’ll die or resign in the second Obama term.

That is what is so frustrating to someone who generally holds “liberal” views - the court has moved so damned far to the right, that the folks who are traditionally in the middle are being branded as leftists! I think the court would be better off with primarily centrists, but with Scalia, Roberts, Alito, and Thomas anchoring down one extreme end, it will take a couple of extremists on the other end - or a whole bunch of centrists, just to balance them out.

Someone should inform Scalia one can be brilliant without being pompous and arrogant. Posner and Easterbrook - on the 7th - impress me similarly. You know, there are a lot of really impressive judges out there, who aren’t such asses.

How is Thomas’s health? Just curious.

Buddy of mine used to clerk there, and said CT was a hardcore powerlifter, and an absolute bull on the hoops court. That was 15 years ago, but when someone maintains that level of fitness, I don’t generally expect them to completely let it slide.

Not so much anymore – playing on the Supreme Court’s basketball court (a/k/a “the highest court in the land,” because it’s directly above the Court chamber) fucked up his knees, because it’s just a couple gym mats flopped down over the marble floor.


Just remember, please, that Ginsburg came to the Court after years of working for the ACLU on discrimination and reproductive rights issues and after carving out a liberal reputation on the appeals bench. She didn’t have a reputation as a centrist then and still doesn’t, unlike the justice she replaced. Byron White did have that reputation - he was a swing justice in his day.

I admire Ginsburg a lot - but I don’t agree with her much. And that’s because she has a judicial philosophy I have a general disagreement with. Now, perhaps you ought to admit that she has such, and quit trying to pass her off as some kind of phony centrist. She isn’t one - and she probably would be the first to admit such.

His argument is that the center of the court has shifted right. And it absolutely has. Maybe that’s because the old center was to the left of some objective center. Is that what you’re arguing?

And for the record, at the ACLU Ginsburg worked on sex discrimination, not reproductive rights. Believing that women should not be discriminated against because of their gender hardly makes her a leftist.

Byron White was viewed as a moderate conservative when JFK appointed him. Being a “swing justice” was a development of his later years, as the court shifted right past him. Sandra Day O’Connor was viewed as strongly conservative in the Reagan era. She ended up with Kennedy and Souter as the supposed centrist group.

Kennedy is, as Bricker and I have discussed, a political conservative but a devotee of the ‘Living Constitution’ school of interpretation, most of whom are generally regarded as liberal. His analysis in Romer v Evans is perhaps on of he most masterful examples of how to do L.C. the right way.