(Part 5--Retirees, past & possible) Court Elders: The Septuagenarian Justices

In this series, we've been looking at the septuagenarian Justices, the younger ones, and the recent retirees. With regard to the retirees--the 10 over the last 25 years--we've focused on their time on the Court and their age when they departed. [See [See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012; (Part 2), Nov. 24, 2012; (Part 3--the "Yoots"), Dec. 4, 2012; (Part 4--the Retirees), Dec. 6, 2012.]

Now, let's single out the "extreme" retirees--i.e., those were on the Court the longest and the shortest, and those who were the oldest and the youngest at retirement  Then the "average" retirees--i.e., those who represent the average (or the median) time Justices remain on the Court, and who represent the average (or the median) age when they leave.

Here are the extremes:

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That's Justice John Paul Stevens, appointed by President Ford and the Court's last retiree, at one end of the range with the longest tenure among the recent retirees. His 34 1/2 years is one of the longest in Court history. (William O. Douglas, an FDR appointee, holds the record at 36 1/2 years.)

Justice Lewis Powell, the 3rd of President Nixon's 4 appointees, is at the other end with his 15 1/2 years being the briefest tenure among the last 10 retirees. (James F. Byrnes, the last of FDR's 9 appointees, holds the record with a mere 15 months.)

As for age at retirement, that's Stevens again at one end as the oldest--and, at 90, one of the oldest retirees in Court history. (Oliver Wendell Holmes, a TR appointee, was several months older--just a few weeks short of his 91st birthday.)

At the other end is President Bush 41's appointee, Justice David Souter, whose retirement at (nearly) 69 years of age makes him the youngest to retire among recent Justices. (Justice Benjamin Curtis, appointed by President Fillmore, was apparently the youngest to leave the Court. He resigned at the age of 47, appalled by the Court's decision in the Dred Scott decision, against which he authored a dissenting opinion.)

[I've summarized the time-on-the-Court and retirement age data for the last 10 retirees in a Table that's accessible HERE.]

(Part 3--the "Yoots") Court Elders: The Septuagenarian Justices

In parts 1 and 2 of this series, we took a quick look at the 4 septuagenarians currently on the Court--Justices Ginsburg, Scalia, Kennedy, and Breyer. Specifically, we pointed to their ages-- now and when President Obama's 2nd term ends--their ideological leanings, and the likelihood of their retiring in the next 4 years.
[See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012; (Part 2), Nov. 24, 2012.]

Here's a recap:

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In short, their ages range from the oldest, 79 ( Ginsburg), to the youngest, 74 (Breyer); and by the end of Obama's term, 83 to 78. Their years on the Court, by that time, will range from 30 (Scalia) to 22 (Breyer).

As for the remaining 5 Justices, they are all at least 10 years younger than the youngest septuagenarian. Just how young are these relative young-ens (or "yoots," per Joe Pesci's Vinny Gambini in My Cousin Vinny)?

(Part 2) Court Elders: The Septuagenarian Justices

[Hope everyone had a wonderful Thanksgiving.

Have to mention that I had my 1st Flagel (= flat bagel) at my brother and sister-in-law's. LOVED it!. It's not quite eggplant parm or turkey, but it's awfully good!]

In the last post, we took a look at recent retirees. Three of them. Justices O'Connor, Souter, and Stevens. We then identified the 4 septuagenarians currently on the Court. We looked at 2 of them: Justices Ginsburg and Scalia.

We considered their ages-- now and at the end of re-elected President Obama's next term--the ideological leanings evident from their voting records, and some indications of their readiness or not to retire in the next 4 years. [See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012.]

Let's now continue with the other 2 Justices who are in their 70's: Kennedy and Breyer.

Anthony Kennedy Conservative, but liberal on some issues.

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Justice Kennedy would not seem to be a good bet for retiring too soon.

As all Court watchers are well aware, Justice Kennedy is a generally conservative Justice. But he's not nearly as one-sidedly so as Scalia or Thomas. And being less-rigidly ideological, he is the frequent swing-vote on the Court. In other words, his vote often decides the cases.

Now that surely makes him one of the most powerful people in American government today. He is, perhaps, second only to the President himself. Certainly that is true on constitutional and other legal matters. Likewise on political matters that raise constitutional and other legal issues.

As such, in the most consequential cases before the Court, it is his vote that is most often the most solicited. Both by litigants and by the other Justices.

Court Elders: The Septuagenarian Justices (Part 1)

[Back from surgery. All went well, thank you.

And thanks to all the wonderful folks at Albany Med.]

With the re-election of President Obama [Disclosure: I'm unabashedly elated.], thoughts turn to the Supreme Court.

For Court watchers, as well as just about anyone else who follows politics and government, the question of possible Justice retirements and replacements comes to the fore. Four of the Justices are in their 70's. Three will be 80 or older 4 years from now, at the end of the Obama presidency.

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Those septuagenarians are Justices Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy, and Stephen Breyer.

Now let's get one thing straight. This is not a death watch. (Others have engaged in that--explicitly.) Nor is this an illness watch. No. My fervent wish is that all the members of the Court would live long and healthy for double their current ages and beyond. So, No.

But this is about the reality and history of retirements. Leaving the Court for a host of different reasons. And at different ages.

"Albany Law’s Bonventre Talks Supreme Court and Obamacare” [video]

Here's Vin [me] interviewed on Capital Tonight with Liz Benjamin, on the evening of the first day of oral arguments at the Court on Obamacare.

It's my recap of the issues before the Court, and some discussion of the Justices, as well as my predicted outcome--i.e., to uphold!

http://www.capitaltonight.com/2012/03/albany-laws-bonventre-talks-supreme-court-and-obamacare/

Supreme Court: Souter's Replacement--A Short List

A few things at the outset.

President Obama will choose a liberal. Forget anything to the contrary. Whoever Obama picks will be on the opposite side of the hot-button issues from the very politically conservative Justices Scalia and Thomas, as well as the somewhat more moderately conservative Chief Justice Roberts and Justice Alito. Yes, Obama might choose someone who is "centrist" or "moderate" in a vacuum. But in the context of the current Court, that someone will be on the liberal side of the spectrum.

Let's be serious. Obama's not going pick someone who would have written the "torture memos." He's not going to appoint someone whose views on abortion rights, gay and lesbian rights, separation of church and state, the rights of the accused, affirmative action, civil rights, international legal obligations, and other politically charged issues would be aligned with conservative Republicans. On all or most of those kinds of questions, Obama's appointee will surely share the views of liberal Democrats. Certainly "liberal" on the national political spectrum.

Additionally, Obama's pick for the Court will have very strong credentials. Remember, the President graduated from Harvard Law, he was the editor-in-chief of its law review, he married a Harvard lawyer, and he taught Constitutional Law at the University of Chicago. He's not going too far down the legal food chain to select a Justice for the high Court.

His appointee will almost certainly be someone educated at an Ivy League institution or at an equivalent such as Virginia, Chicago or Stanford. And his appointee will have a very impressive post-school resume. A prestigious judicial clerkship, work in an important federal or state law enforcement office, experience as a judge on a federal appeals court or state supreme court or as a governor or U.S. Senator, or a distinguished academic career.

Of course, there's at least one more consideration that can't be ignored. Diversity. Obama's pick will very likely fill a gender or ethnic gap on the Court. Maybe both. Only one woman currently on the Court! Embarrassing for an institution committed to equal justice under the law. The President and his wife know--and feel--that. So a woman appointee is a good bet.

No Hispanics on the Court! Never been one. (OK, some might ask about the great Benjamin Cardozo. I asked the same when Governor Cuomo appointed Carmen Ciparick to New York's high court and she was heralded as its first Hispanic judge. What about Cardozo's earlier tenure on that court? Well, fact is, Cardozo's family ultimately derived from what used to be called Iberia--the land mass now including Spain and Portugal. But his family came from the latter part. I've been told--no, lectured--that Cardozo was therefore Portuguese, not Hispanic, and that I should keep the two distinct. I have ever since.) Of course there are political reasons for Obama to choose an Hispanic. So there's a pretty fair chance for that as well. And if not this appointment, then the next one.

Two more considerations. One judicial, one political. (Okay, there's a thin line if any between them. At least in the sense of governance. But I'm speaking here about decision-making that simply happens to occur inside the Court versus that which simply happens to occur in and between the legislative and executive branches.)

As for the judicial, Obama will surely want to do more than merely replace Souter's one liberal vote for another. If he wants to change the direction of the Court, alter the somewhat conservative leanings that have characterized its jurisprudence for almost a third of a century, Obama will need to do more. He will need to appoint someone whose influence on the institution goes beyond casting votes with the liberals. He will need to appoint someone who can influence other Justices. Someone who can get votes. Someone who by strength of intellect or personality can persuade some Justices to vote contrary to their more typically conservative instincts.

As for the political, Obama has no need for a bruising confirmation battle. He has far too much on his plate. The economy, health care, two wars, etc., etc. He can't afford to expend too much political capital by nominating someone too offensive to the Republicans and perhaps, as a consequence, unpopular with too much of the public.

With that as a preface, here's my short list of who might be on Obama's short list. There's 3 judges, 2 deans, and 1 governor.

Sonia Sotomayor.
She would seem to have it all. Certainly for a President looking for a well qualified, politically appealing Supreme Court nominee. (At least on paper. See "Possible drawback" below.)
Appellate experience--she's a judge on the 2d Circuit, the federal appeals court that sits in Manhattan. First rate education--Princeton undergraduate and Yale Law. Litigation--she was a prosecutor in the Manhattan (i.e., Robert Morganthau's) district attorney's office, the nation's most prestigious and distinguished DA's office. Bi-partisan--she was appointed to the federal trial bench by Bush, Sr., and to the appeals court by Clinton. She's 1) a woman and 2) Hispanic (Puerto Rican heritage). And to top it off, she has a moving life story of rising from modest and difficult circumstances.
She is the current conventional wisdom's front runner.
BUT...
Possible drawback: serious questions have been raised about both her intellect and her personality. For starters, there are some who say she is hardly the intellectual heavyweight or infectious personality needed to counter the conservative candlepower of a Scalia, Roberts or Alito. If true, she would not be much help in bringing change to the Court's conservative leanings.
Who knows for sure? I don't. Not personally. She could actually be brilliant and charming. But she could also be quite far from either--which is what is being said.
In any event, what has been written and said, by those who might well know (see Jeffrey Rosen's "The Case Against Sotomayor"), is more than enough to give pause. Let's be blunt, if Obama has heard what Rosen has been told--and what I too have been told by people who would know--it's hard to imagine that he would choose her. Indeed, if the assessments and criticisms are at all accurate, she does not belong on the Court.

Diane Wood.
She apparently does have the candlepower. Lots of it. And she's had to use it on the 7th Circuit, the conservative federal appeals court that sits in Chicago. She has had to deal with Richard Posner and Frank Easterbrook, two of the acknowledged genuine brilliances of the federal judiciary. Her dissents on that court evince an uncowered intellect ready and willing to go toe to toe with the best and brightest--a class that would certainly seem to include herself.
She has already worked at the Supreme Court. Following her graduation from Texas Law and then a clerkship at 5th Circuit, she served as a law clerk to Justice Harry Blackmun. She then practiced at Covington & Burling, one of the nation's truly premiere law firms. She was a professor at Georgetown Law and then at Chicago (along with Obama), where she continues to teach. She served as an assistant attorney general in the Clinton administration until he appointed her to the appeals court.
Possible drawback: her dissents in some high profile cases, which are critical of her colleagues' conservative decisions, may serve as political fodder for Republican senators who want to take a stand against the President for nominating a "liberal activist" judge.

Leah Sears
The Chief Justice of Georgia. The first African-American woman to hold that position. Also the first woman and youngest person ever to sit on that court. She is very well respected by those who study state supreme courts. Indeed, she was the 2007 Brennan Lecturer at NYU Law. She's a graduate of Cornell, Emory Law and Virginia graduate law. [She is also on the board of State Constitutional Commentary, an annual issue of the Albany Law Review. Disclosure: I am the editor of that issue and I invited her onto the board because I think very highly of her.]
Possible drawback: Governor Perdue and the Georgia Republican party actively opposed Sears's reelection as Chief Justice in 2004. That may well be a preview of Republican senators' opposition to her as, you guessed it, one of those "liberal activist" judges.

[Sears is one of several exceptional woman chief justices heading state high courts around the country. In a recent post on New York Court Watcher, I identified 9 of these state chiefs who I truly believe would make a much better Supreme Court than we currently have. See Chief Justice Abrahamson Gets Another Term!! -- and other Great Women Chiefs, April 10, 2009.]


Elena Kagan
Former (and first woman) dean of Harvard Law. Education--Princeton, Oxford, Harvard Law. She has already worked at the Supreme Court as a law clerk to Justice Thurgood Marshall, which followed her clerkship at the D.C. Circuit. She was a professor at Chicago before working in the Clinton administration as an assistant White House Counsel. She is currently part of the Obama administration as Solicitor General--hence, she is responsible for representing the United States before the Supreme Court.
Possible drawback: she was already blocked once for a judicial appointment when Clinton nominated her for the D.C. Circuit.


Kathleen Sullivan
Former (and first woman) dean of Stanford Law and previously a professor at Harvard. A graduate of Cornell, Oxford, and Harvard Law (where Laurence Tribe is quoted as saying that she was the "most extraordinary student" he ever had). She clerked at the D.C. Circuit, she has argued many high profile cases before appellate courts including the Supreme Court, and she is widely considered one of America's most influential lawyer's and one of its most distinguished constitutional scholars.
Possible drawback: as with any academic, especially a true scholar, she has an extensive paper trail in which she has explored difficult issues and undoubtedly expressed views that could be exploited by Republican opposition because of their unfamiliarity or unpopularity with the general public.

Jennifer Granholm
The current Governor of Michigan. Graduate of Berkeley and Harvard Law. (Both with honors. So no need to be distracted by her past as a beauty queen and her attempts at a Hollywood career.) Following law school, she clerked at the 6th Circuit. She then served as a federal prosecutor and the Michigan Attorney General before being elected and reelected (the state's first woman) Governor.
An active supporter of Obama for President, she played the role of Sarah Palin in mock debates with V.P. candidate Biden. She was a member of Obama's transition team.
Possible drawbacks: as a Governor in a state with the declining auto industry and a failing economy, she has her hands full with crisis after crisis and with decisions unpopular with her Republican opposition in the state senate--some of which might well spill over into Republican opposition in the U.S. Senate.

So there are the 3 judges, 2 deans and 1 governor that make up my short list--of Obama's possible short list.

But let's remember Mine That Bird. A 50-1 shot winning the Kentucky Derby last weekend. So, this may well be the season for long shots. Here are a few other possibilities. And their odds are probably much better than the Derby winner's were.

What about a few guys? Okay.

Mariano-Florentino (Tino) Cuellar
Harvard, Yale Law, Stanford PhD
Stanford Law professor
Presently on Obama's Domestic Policy Council
Hispanic




Charles Ogletree
Stanford, Harvard Law
Harvard Law professor (taught both Obama and Michelle)







Eric Holder
Columbia, Columbia Law
Presently the Attorney General (the first African-American)




And 2 more women.

Kim Wardlaw (sorry, the best pic I could find)
UCLA, UCLA Law
Appointed by Clinton to the 9th Circuit, the appeals court sitting in San Francisco
Hispanic (Mexican-American mother), and the first to sit on that court






Need I say?

Hillary Clinton
Wellesley, Yale Law
Appointed by Carter as Chair of the Legal Services Corporation
First Lady
U.S. Senator from New York
Presently Secretary of State




Now there are some extraordinary potential Justices among those I've listed. (Excluding, perhaps, the supposed front runner. Is that ironic or what?) I'm not sure who I'd put at the top. Excluding the men wouldn't make it easier. For me, it would be very difficult to choose between Diane Wood, Leah Sears, Elena Kagan, Kathleen Sullivan, and Hillary. Although I must admit, I think the world of Hillary and I'd personally be thrilled if she got the nod.

But then, it would be great if Diane Wood were nominated, or Leah Sears, or....

Obama and the Court

One of the most enduring powers a President exercises is the nomination of Justices to the Supreme Court. As lifetime appointees, Justices typically remain on the Court long after the Presidents who selected them are gone from office. And in deciding the most fundamental questions about freedom and authority in our republic, the influence these Justices have on the values, direction and history of the nation oftentimes surpasses that of the Presidents who were responsible for putting them on the Court in the first place.

President-elect Barack Obama may well get the opportunity to exercise the appointment power before too long. It is likely that one or more Justices will retire within the first few years after Obama takes the oath of office. In replacing those retiring Justices with his own selections, the new President will put his own mark on the Court and, ultimately, affect the philosophical and jurisprudential character of the Court's decisions.

Although he was just elected last night, it's certainly not too early to consider which Justices might be retiring--i.e, the Justices President Obama might be replacing, the ones who might give him the opportunity to remake the Court. Here they are in some rough order of the liklihood of their retiring:

John Paul Stevens--appointed by Ford in 1975; liberal [age 88; certainly wants a Democratic President to choose his successor]
Ruth Bader Ginsburg--appointed by Clinton in 1993; liberal [age 75; has had health problems; certainly wants a Democratic President to choose her successor]
David Souter--appointed by Bush (41) in 1990; liberal [relatively young, 69, but reportedly is not particularly happy; certainly wants a Democratic President to choose his successor]

The rest:
Anthony Kennedy--appointed by Reagan in 1988; moderately conservative [not particularly old, 72; unlikely to want to leave his strategic position as the Court's swing vote]
Stephen Breyer--appointed by Clinton in 1994; liberal [not particularly old, 70; no suggestion he'd like to leave any time soon; but certainly would want a Democratic President to choose his successor]
Antonin Scalia--appointed by Reagan in 1986; conservative [not particularly old, 72; very unlikely to leave with a Democratic President to choose his successor]
Clarence Thomas--appointed by Bush (41) in 1991; conservative [relatively young, 60; not particularly happy, but very unlikely to leave soon, esp. with a Democratic President]
John Roberts--appointed by Bush (43) in 2005; conservative [young, 53; newly appointed; unlikely to leave with a Democratic President]
Samuel Alito--appointed by Bush (43) in 2006; conservative [young, 58; newly appointed; unlikely to leave with a Democratic President]

In short, the most likely to retire are Stevens, Ginsburg and Souter. All are liberals. So President Obama is likely going to be replacing only liberals, not conservatives [at least in his first term]. And replacing these liberals with liberals--which is almost certainly what President Obama would do--will NOT do much to affect the ideological composition of the Court.

On the other hand, if an Obama appointee is especially adept socially, politically, and intellectually in influencing colleagues--for example, as William Brennan was according to most accounts--than that appointee might well make a difference. Such a liberal Obama appointee, though simply replacing another liberal, might well alter the ideological dynamics within the Court.

As for all and any of this, we shall see. And perhaps sooner than later.

[For more on the ideological breakdown of the current Court and the voting patterns of the individual justices, see previous posts on the New York Court Watcher: Another GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order), Oct.24, 2008; Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!]), Oct. 14, 2008; GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Parts 1 & 2 Recap in Graphs: Discrimination & Cultural Issues), September 24, 2008; Part 2: Cultural Issues, September 20, 2008; Part 1: Discrimination, September 16, 2008.]