Six of Nine
This has been cross-posted at MyDD and Daily Kos.
Something dawned on me as I contemplated the upcoming Presidential Election. We are about to witness one of the greatest turning overs of the Supreme Court in the history of the United States.
Six of Nine Supreme Court Justices, by the end of the 2nd term of the next President of the United States, will be 70 years or older.
Age as of January, 2009, Inauguration Day:
Justice John Paul Stevens: 88 years
Justice Ruth Bader Ginsburg: 74 years
Justice Antonin Scalia: 72 years -- Conservative
Justice Anthony Kennedy: 71 years -- Swing Vote Conservative
Justice Stephen Breyer: 70 years
Justice David Souter: 69 years -- Swing Vote
Clearly, the liberal wing of the Supreme Court is set to retire completely within the next decade. See below:
Age as of January, 2017, Inauguration Day of the following President:
Justice John Paul Stevens: 96 years
Justice Ruth Bader Ginsburg: 82 years
Justice Antonin Scalia: 80 years -- Conservative
Justice Anthony Kennedy: 79 years -- Swing Vote Conservative
Justice Stephen Breyer: 78 years
Justice David Souter: 77 years -- Swing Vote
And coming up shortly thereafter in 2017?
Justice Clarence Thomas: 68 years
Justice Samuel Alito: 66 years
Justice John Roberts: 62 years
In other words, the next President will literally define the Supreme Court for a generation in a way that no other President has had an opportunity to do since Franklin Delano Roosevelt when he appointed 9 Justices during his 12 years in office.
Repeat that again. FDR.
Say it one more time for emphasis. F. D. R.
The only other President who would have come close to FDR during the last 60 years would be Dwight Eisenhower, who selected 5 Justices during his tenure from 1953 - 1961.
Ahead of FDR for most appointees in United States history? George Washington. Yes, one of the founding fathers of this nation who was able to appoint 11 justices.
By comparison, the only Presidents in the past 50 years to have served multiple terms, i.e., George W. Bush, Bill Clinton, and Ronald Reagan, each received two appointments.
I cannot stress enough how that much more important it is that Barack Obama secure the White House in light of this fact. If you care about the Environment, Women's rights, Gay rights, the right of non-US and US Citizens to not be unlawfully spied upon and detained in secret prisons, Union rights, Free Speech, Diversity, Voting rights, the rights of those who are in Prison, and a whole slew of other issues such as Digital Property Rights and Eminent Domain, then you must recognize that this coming President will have enormous power to shape the judicial direction of this country for decades.
We MUST elect Barack Obama to ensure the outcome that sees us move forward, not stay stagnant or even worse, fall backward. It is the nature of this nation's history to push onward in the face of conservative thought that would see the status quo of the human condition remain in perpetuity.
We have an opportunity to shatter that status quo in a way that has not been done in more than half a century. We must grasp it and hold firm.
Please share your thoughts.
I can't imagine you'd find any disagreement here on this.
But see if you can find Hillary's mailing list somewhere would you?
sigh
How about posting it on talkleft.com?
They were largely pro Clinton but I had the impression they weren't quite so virulently anti Obama as some of the other blogs.
June 10, 2008 8:01 AM | Reply | Permalink
Nice list, but I'd leave out Eminent Domain. The "liberal" Justices were in the wrong on that one, IMNSHO. (I.e., they supported it, where "they" means Stevens, Breyer, Ginsburg, Souter and Kennedy.)
Perhaps you could replace it with Unitary Executive.
June 10, 2008 9:50 AM | Reply | Permalink
Greetings Ben,
I think that there is a good possibility to overturn the Eminent Domain decision with Obama justices in place.
I have a sense that the notion of property rights in general needs a fresher perspective than has been granted.
June 10, 2008 11:45 AM | Reply | Permalink
They supported it because they said states rights supersede federal rights. It was up to the states to enact legislation regarding ED.
I don't agree with it, but that was their reasoning.
IL, where I live, has ED laws. Other states had them and more developed them since this ruling.
Doubtfully in Gooper states, though.
Live Frankly
June 11, 2008 2:20 AM | Reply | Permalink
Discussion about Supreme Court nominations have been shockingly absent or minimal in previous elections. The mainstream press have always minimized their repercussion, and senators have bought into this mentality, often becoming passive rubber stampers. I can only hope the subject is taken more seriously during this campaign season. It obviously is taken quite seriously by radical right voters.
Thank you for attending to this subject.
June 10, 2008 11:01 AM | Reply | Permalink
I'd rather discuss how many angels can dance on Josh Marshall's head.
June 10, 2008 10:53 PM | Reply | Permalink
This fact is NOT lost on the Conservatives/Republicans. George Will said on Hardball last night that the SC appointments are the sole reason that anyone will come out to vote for McCain. If there's no other reason for them to vote Republican, this one is it.
Regardless of how they feel about McCain, the right has not conceded this race to Obama: they intend to make him fight for it big time.
June 10, 2008 12:20 PM | Reply | Permalink
He's absolutely right, when we don't have someone to vote for, y'all give us one to vote against everytime. The thought of an Obama packed SCOTUS is enough to get any conservative up and to the polling place.
June 10, 2008 2:17 PM | Reply | Permalink
Likewise for a McCain packed SCOTUS.
June 10, 2008 2:52 PM | Reply | Permalink
Wanted to update that Reagan actually got three appointments, not two. That was a mistake of mine and was corrected at MyDD by TL.
June 10, 2008 1:08 PM | Reply | Permalink
While we're on corrections, FDR had 8 appointments, not 9.
Black
Reed
Frankfurter
Douglas
Murphy
Byrnes
Jackson
Rutledge
June 10, 2008 4:15 PM | Reply | Permalink
Just like to note that IF Obama is elected, you can be sure that many in the liberal wing of the SCOTUS will be more likely to retire in the next three years. However, the conservative members will be more likely to spend some good moohla on the latest age-defying treatments.
June 10, 2008 2:43 PM | Reply | Permalink
Also, keep in mind that the first term should also feature a strongly Democratic Congress.
June 10, 2008 2:54 PM | Reply | Permalink
I was asked to cross post this from another entry. SFCWallace - what's your take on whether Jefferson and Franklin's religious views deserved constitutional protection? This is from a paper I wrote last semester on dominionism (see wikipedia for more on that):
For example, a soft dominionist would hold that freedom of religion applies to Christians, but not to Hindus or various Christian offshoots such as Mormonism or the Seventh Day Adventists (Clarkson, 1997; Goldberg, 2006). It is interesting to note that in a dissenting opinion on McCreary County v. ACLU (Scalia, Rehnquist, & Thomas, 2005), three United States Supreme Court justices held that government neutrality towards religion applied exclusively to monotheistic religions, explicitly excluding polytheist, deist and atheist beliefs from equal legal protection*:
and further on:
* It is not known if the irony of excluding the Deist beliefs of Founding Fathers such as Benjamin Franklin and Thomas Jefferson from constitutional protection was lost on these justices.
Clarkson, F. (1997). Eternal Hostility: The Struggle Between Theocracy and Democracy. Monroe, ME: Common Courage Press.
Goldberg, M. (2006). Kingdom Coming: The Rise of Christian Nationalism. New York, NY: W. W. Norton & Co.
Scalia, J., Rehnquist, C. J., & Thomas, J. (2005). McCREARY COUNTY, KENTUCKY, et al. v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et al. Retrieved May 2, 2008, from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-1693
June 10, 2008 3:36 PM | Reply | Permalink
Ginsburg, the next oldest Justice, will not reach Steven's age for another 14 years. How do these ages equate to an overturning of the court in four or eight years? Has there been any indication that more Justices are planning to retire in the next two terms? It is almost certain that the President will appoint a SC Justice (only four, including Jimmy Carter, have not appointed one), but appointing many is very rare. The SC should always be a factor in choosing a president. But the one time that it was more than just another important factor was when the SCOTUS itself decided the President in 2000. I wish that the next president will be a Dem and will appoint a new court, but wishes are one thing.
June 10, 2008 3:52 PM | Reply | Permalink
Don,
The average age of retiring SC justices has been about 75-80 over the past couple of decades.
June 10, 2008 4:03 PM | Reply | Permalink
Thanks, yalin. It has been getting longer coincidental with longer lifespans. Rhenquist died before he retired, didn't he? And I think O'Conner retired because of her husband's health. Anyway, I'm just saying that, while it would be nice if we could take back all three chambers of government, I think the odds are against it in the short term (and Republicans have had the edge in SC appointments since the late '60s). I don't think this argument will resonate with the indies and Reagan Dems that Obama is wooing.
June 10, 2008 4:44 PM | Reply | Permalink
Stevens is just waiting for a Dem to retire. I'm not sure about your calling Souter a swing vote. He's been solidly progressive since day 1, at least from my perspective.
June 10, 2008 11:35 PM | Reply | Permalink
Well, as far back as 2005 (I know nothing about this particular source, but I do know I've heard it mentioned for a while), speculation on Ginsburg's health has left people wondering how much longer she'll be on the court. She might even retire before Stevens.
June 10, 2008 4:15 PM | Reply | Permalink
Yes, I've heard that, too. The avg. age of retirement has been growing (78.8 since 1971) and I think Scalia will have to be dragged out. I do think Congress needs to start looking at a retirement age cap with the longer lifespans and frequency of senility. But, if I were a betting man, past history and the current make up would imply two, or at most, three retirements in the next eight years, and those would be centrist and left-leaning Justices. It's crucial that McCain not get a chance to appoint even one conservative Judge (and I'm not at all trusting of the Dem congress to reject a RW ideologue) but that can be an argument that brings out his base not ours.
June 10, 2008 4:35 PM | Reply | Permalink
A retirement age cap would be unconstitutional. Article III mandates life tenure for judges.
June 10, 2008 4:39 PM | Reply | Permalink
I know and there are some proposals to amend it, but there are others that would work around it (expanding the court, SC term limits, etc.). I'm not versed in this topic, but doesn't the lifetime appointment seem detrimental to good governance (as much for politicization of the Court as dementia and old age) because the founders were not anticipating such long lifespans?
June 10, 2008 4:53 PM | Reply | Permalink
I'm not sure if that's a valid argument, because as we've lengthened the average lifespan, we've also delayed the average onset of senility, etc. I would've trusted my Granddad or Grandmother in their 90s (if they had the proper legal training) to make decisions for the court because they were still mentally sharp. On the other hand, some people start experiencing senility in their 70s or possibly even earlier.
June 10, 2008 4:57 PM | Reply | Permalink
Yes and it is usually a gradual onset. Many believe Reagan was showing definite signs of senility in his second term, which underlines how hard it is to move someone out of office once they begin those early lapses (they would not ordinarily recognize their own problem and step down voluntarily). I think the increasing politicization of the court, partly due to the lifetime appts. is more important, but this is still an issue. IIRC, one out of every four people over 80 develops dementia. With the average SC retirement age approaching 80, it seems almost guaranteed that at some near point, barring major medical advances, we will have a senile justice serving.
June 10, 2008 5:39 PM | Reply | Permalink
I definitely don't dispute your prediction (other than to suspect it might be a retrodiction), but I think perhaps a better argument might be made for annual checkups that include some sort of test of mental faculties.
June 10, 2008 5:42 PM | Reply | Permalink
As frog leg pointed out, it's unconstitutional to remove, except by impeachment. But maybe the "serves on good behavior" could be interpreted as meaning mentally fit. The problem is that there may be one or two serving right now who couldn't pass that test.
June 10, 2008 5:59 PM | Reply | Permalink
That the Supreme Court was an issue was talked about over and over during the campaign, along with the fact that the court was one of several reasons to make sure we nominated the most electable candidate. It's a little late now to appeal for support based on the court issue. If you picked a winning candidate, you already have all the support you need.
June 10, 2008 4:04 PM | Reply | Permalink
Agreed. And talking more about it might alienate some independents.
The Court is certainly a primary issue. Definitely not a GE issue.
June 10, 2008 4:10 PM | Reply | Permalink
Well, I'd argue we picked the candidate most likely to win in November, but that doesn't mean we can't use all the help we can get. I sense you're not committed to getting a Democrat elected to the White House. Is that true?
June 10, 2008 4:25 PM | Reply | Permalink
Because alienating the pro-life vote is not something a Democrat can do. There was a poll done in August 2004 which found that 34 percent of Kerry's supporters agreed with the statement "abortion should be legal only in the most extreme cases, such as to save the life of the mother, incest, or rape."
http://brothersjuddblog.com/archives/2004/08/winning_the_culture_wars_3.html
Driving home constantly that Roe has to be reaffirmed has the potential to scare off these voters.
June 10, 2008 4:35 PM | Reply | Permalink
I absolutely understand that. My post was a response to Billy. He's made a few comments recently that make me suspect he's pulling for McCain about now.
Of course, with respect to your comment, it's important to recognize your audience. Here, we're more likely to activate our base than theirs when we mention the SCOTUS. IRL, if you're not sure, you probably should gather more information about a person's views before bringing up the SCOTUS point for exactly the reasons you mention. Similarly, I think it's fair game on sites like TaylorMarsh or even HillaryIs44 where presumably the audience is predominantly liberal, if you're able to post anything there. (I've tried posting to TaylorMarsh about a half dozen times. Every post has been "held" for moderation and never released. These have been tame posts that have not insulted Clinton at all.)
June 10, 2008 4:49 PM | Reply | Permalink
I'm not pulling for anyone. I'm going to vote my own interests and issues in November. That okay with you?
June 10, 2008 10:31 PM | Reply | Permalink
Well, I'd prefer that you do actually vote your own interests and issues, but recently you've written things that make me think you won't. Do what you must, however. I won't trouble you further.
June 10, 2008 11:29 PM | Reply | Permalink
Thanks, Ben. For a moment there, I thought you were about to tell me what my own interests and issues are. I doubt they're the same as yours, but Obama may serve them as well. We'll see.
June 10, 2008 11:53 PM | Reply | Permalink
This is a great post, and a great argument for the general election.
Americans do not like unbalanced government. Reagan balanced the Dem Congress. 1994 repudiated one party Dem government. 2008 looks like a repudiation of 1994 and Bushism. The American people do not want nine Republican justices. The argument is easy. Balance.
Also, the courts of appeal are roughly two thirds Republican today. Four years from now, we'll be at 80% Republican on courts of appeal (or more). You're talking about an emerging one party state in the judiciary -- a party with rigid ideological tests for their judges.
So this is not an invitation to rehash Bill Richardson's failure to win the nomination, or the tiresome battle over whether Obama or Richardson is more electable. It's about progressive values, and even centrist values of balance and freethinking.
June 10, 2008 7:09 PM | Reply | Permalink
Thanks for the demographics. It's true, we can't afford to lose this one. We are, generationally, at a point not where we'll wind up with a conservative court should McCain win, but we're beyond that... we already have a conservative court because of Republican wins over the last 30 years. We're now at risk of being vanquished entirely from the court. That not only means having precedents that we've lived with overturned in the short-term. It means that it will take us 3 decades of presidential victories just to get back to where we are now.
June 10, 2008 8:18 PM | Reply | Permalink
College blogs. The students need to be aware of this. They need to get out and vote and convince their not-so-inclined friends to vote. This is a very compelling post. I'd post it on blogs with a student audience.
June 11, 2008 1:22 AM | Reply | Permalink