Senior citizens dominate the Supreme Court. Some will leave in the next four years, and this year’s election for president will determine who’ll fill any vacancies on the court, President Barack Obama or President Mitt Romney. Whichever party is in charge, a vacancy in the next presidential term seems a foregone conclusion, perhaps more than one.
Four Supreme Court justices are over the age of 70: Stephen Breyer is 74, Anthony Kennedy and Antonin Scalia are 76 and Ruth Bader Ginsburg, a pancreatic cancer survivor, is 79.
Ginsburg, for one, has hinted that she intends to match the court tenure of the late Justice Louis Brandeis, a goal that, if held to, would have her retiring in 2015. That’s within the next presidential term.
“I was appointed at age 60, the same age that Louis Bidenz Brandeis was when he was appointed to the court,” Ginsburg told a George Washington University audience last year. “He stayed until he was (82). So I do have a way to go.”
The last 10 justices to depart the Supreme Court had an average age of nearly 80, though John Paul Stevens skewed this average upward when he stepped down in 2010 at the age of 90.
If any or all leave the court, the ensuing confirmation struggles could shape law and politics for years to come. Yet despite the court’s significance to their own futures, neither Obama nor Romney has dwelled on the subject. Tellingly, neither man even mentioned the court in his nomination acceptance speech.
“It has been quite remarkable to me, the fact that talk about the Supreme Court has been entirely absent from the campaign,” acknowledged Steven Shapiro, the legal director of the American Civil Liberties Union. “I have literally not heard it mentioned even once.”
In part, the candidates are taking their cues from indifferent voters. The Supreme Court ranks at the bottom, at best, when pollsters ask about the most important issues the country faces. Few Americans surveyed can name John Roberts Jr. as the court’s chief justice, a position he’s held since 2005. Nearly half didn’t know the court had upheld the Obama administration’s health care law.
Behind the scenes, though, analysts and insiders are sizing up the possible appointments
As a president, Obama already has a track record. He sent Sonia Sotomayor and Elena Kagan to the high court.
Romney’s background lies in Massachusetts, where he served as governor, and in his campaign for the Republican nomination.
Conservatives complained that Romney bent to the left while making appointments in Democratic-dominated Massachusetts. A Boston Globe survey found that Romney had appointed nine registered Republicans, 14 registered Democrats and 13 unaffiliated individuals, in a state politically dominated by Democrats.
As a presidential candidate, though, Romney has emphasized his conservative bona fides by praising the likes of Roberts and Justice Samuel Alito. In a symbolic nod to the right, Romney named failed Supreme Court nominee Robert Bork to co-chair his judicial advisory committee.
“Our nation needs a Congress and an executive branch that are cognizant of the bounds of their powers and a judiciary that will strictly construe the Constitution and refuse to legislate from the bench,” Romney said.
Age matters, as presidents try to place judges who can rule for several decades. Based on past experience, the next Supreme Court nominee will be 55 or younger. This means the Supreme Court moment probably has passed for previous front-runner candidates such as Judge Diane Wood of the 7th U.S. Circuit Court of Appeals. Wood was a finalist in Obama’s thinking for the last two openings, in 2009 and 2010, but she’s now 62.
“A President Romney would have a deep, strong bench of outstanding and relatively young candidates to choose from,” said conservative attorney Ed Whelan, the president of the Ethics and Public Policy Center and a former Supreme Court clerk. “The Democratic bench is much thinner and older.”
Diversity could be an issue, though this also can take many forms.
Currently, for instance, all nine justices earned their law degrees from one of three Ivy League schools. Only one has Western roots. All are either Jewish or Roman Catholic, none has been elected to office and none has served in the active-duty military.
Any nomination calculus also must account for Congress, particularly if different parties control the Senate and the White House after November. Senators of both parties have been escalating fights over top judicial nominees; another oft-mentioned potential GOP high-court nominee, Jeffrey Sutton, drew 41 Democratic “no” votes on an appellate court nomination. Retaliation is now the rule, as became apparent last year when Senate Republicans blocked Sacramento, Calif., native Goodwin Liu from an appellate court slot.
“I think the ramifications of this filibuster are going to be long and difficult for those who caused this good man to be filibustered,” Democratic California Sen. Barbara Boxer warned at the time.
Among potential Democratic nominees, Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit, a former prosecutor, wins praise for his intellect and moderation, though his prospects are hurt by his turning 60 a week after the election. Former Michigan Gov. Jennifer Granholm, a 53-year-old Harvard Law School graduate, still appeals to those who want real-world political experience on the court, as does Homeland Security Secretary Janet Napolitano, a 54-year-old former Arizona governor.
California Attorney General Kamala Harris, 47, has likewise seen her name floated. It isn’t a possibility she publicly entertains. “She is very focused on her job as attorney general,” Harris spokesman Shum Preston said.
Among potential Republican nominees, former Bush administration Solicitor General Paul Clement is, at 46, often characterized as the nation’s best Supreme Court advocate and a nomination front-runner by any measure. Neck and neck as a potential GOP contender may be one of Garland’s highly regarded colleagues on the D.C.-based appellate court, 47-year-old Judge Brett Kavanaugh. At least a dozen other Republican appointees on the nation’s appellate courts, the bench from which Supreme Court nominees often are picked, are likewise under the age of 53.
Lower-level federal courts, too, will present the next president with myriad lifetime appointment possibilities. There are currently 78 vacancies on the federal bench, according to the Administrative Office of the U.S. Courts. At most, only a small number might be filled in the Senate’s post-election lame-duck session.
Obama has nominated 186 judges; so far, 133 have been confirmed. Romney, while serving one term as governor of Massachusetts, nominated 36 judges to the state bench.