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					     Elena Kagan, Sonia Sotomayor,
and the Future of the U.S. Supreme Court




                              NIU Notables Lecture
                            Northern Illinois University
                                October 19, 2010

                                 Artemus Ward
                            Dept. of Political Science
                            Northern Illinois University
                            Introduction




• We will be discussing the succession process on the Supreme Court.
  Because retirement decisions are partisan, we have seen President Obama
  nominate two new justices. Will there be more?
• We will also discuss the specific situations of Justices Ruth Bader Ginsburg
  and Stephen Breyer – the Court’s two oldest liberal members.
• Finally, we will mention a few of the names that might be on the Obama
  short list of potential nominees should another vacancy arise.
   Presidential Nomination Strategies
• Though Presidents have drawn
  from the Senate, Justice dept,
  and the states, the recent trend
  has been to select a federal
  lower court judge (usually
  appeals court) with the same
  ideology as the President.
• Three aspects of the “perfect”
  nominee:
   – shares president’s ideology
   – identifies with party supporters
     (base)
   – symbolic recognition to a
     significant group of voters such as
     women or minorities (this can also
     be an obscuring tactic to mask an
     ideologically-driven selection).
                                                                         The
                                                                        Senate


•   The Constitution gives the Senate the power to “advise” and “consent.” What does this
    mean?
•   The Senate has rejected 20% of the president’s nominees and fully 1/3 have failed. Yet
    Kagan was confirmed 63-37 and Sotomayor was confirmed 68-31. What denotes success?
     – when president and senate are of the same party there is generally greater success.
     – when current political regime is at its apex, there is greater success.
     – timing is everything – election-year nominees will fail as the nomination will be a major
        campaign issue.
     – the “legal veneer” is often used to attack a political opponent who has been nominated -
        highlighting a lack of experience or unethical behavior, when partisanship is the main
        reason. This was a major factor in the withdrawal of Harriet Miers who was attacked by
        conservatives within her own party for a lack of experience when the real reason was
        that she was perceived as too moderate. Similarly, the sexual harassment allegations
        against conservative Clarence Thomas were used by liberals in an attempt to scuttle his
        appointment.
                     The People
• Since the 1930s, the
  American Bar Association
  has given its opinion on the
  “qualifications” of a
  president’s nominee,
  though it doesn’t hold much
  weight with the Senate.
• Other interest groups have
  had more influence. For
  example, liberal groups ran
  TV ads against
  conservative nominee
  Robert Bork in 1987, and       Robert Bork’s nomination was defeated in the Senate 42-58.
  were successful in helping
  to sink his nomination.
          A Partisan Court?
• Given that the appointment process is
  inherently political, should we expect
  justices to shed their political attitudes and
  interpret the constitution neutrally?
• Political scientists have studied the votes
  of Supreme Court justices to determine
  whether or not justices vote in a
  consistently liberal or conservative
  direction.
The
Vanishing
Liberal
Justice
In the modern
era, the Court
has never been
more
conservative
than it is now.

Even the
“liberal”
justices are
more moderate
than their
predecessors.
  Ideology and the Roberts Court (2005—)
Liberal                            Moderate                      Conservative
L --------------------------------------I-------------------------------------- R
Brennan (D)       Stevens (R)                                 Rehnquist (R)
Marshall (D) Souter (R)                            O’Connor (R)
Blackmun (R)                                 Kennedy (R)
                   Ginsburg (D)                                     Scalia (R)
                      Breyer (D)                                       Thomas (R)
                      Sotomayor (D)                      Roberts (R)
                              Kagan (D)                Alito (R)
                 High Court Succession
Table 2. Institutional Constraints on Partisan Departures in the
U.S. Supreme Court.

• Court Term - Justices retire when the Court is in recess. Often at the close
of a Term in late June or early July, on the last day when opinions are read
from the bench, the Chief Justice announces the retirement of the justice.
This allows the Court to have a full contingent of members during the Term
and, ideally, a new justice to be appointed before the new Term begins the
following October.

• Presidential Campaign - Justices do not retire in presidential election years.
Because the appointment process can be highly controversial, justices do not
want to add controversy by making a specific nomination a campaign issue.

• "Rule of Eight” - Two or more justices never retire at the same time. This
allows the Court to have the largest number of active justices, currently eight,
in case an appointment is not made before a new Term begins.
Retirement Eligibility and the Roberts Court.
                                                               Date of Initial            Date Retirement
Justice & Party ID                  Date of Birth            Service on Federal            Eligible under
                                                                   Courts                    Rule of 80
Ruth Bader Ginsburg (D)            March 15, 1933               June 30, 1980             March 15, 1998

Antonin Scalia (R)                 March 11, 1936              August 17, 1982             March 11, 2001

Anthony Kennedy (R)                  July 23, 1936               May 30, 1975               July 23, 2001

Stephen Breyer (D)                 August 15, 1938           December 10, 1980            August 15, 2003

Clarence Thomas (R)                 June 28, 1948              March 12, 1990              June 28, 2013

Samuel Alito (R)                     April 1, 1950              April 27, 1990              April 1, 2015

Sonia Sotomayor (D)                 June 25, 1954              August 12, 1992             June 25, 2019

John Roberts (R)                  January 27, 1955               May 8, 2003             January 27, 2020

Elena Kagan (D)                     April 28, 1960              August 7, 2010             August 7, 2025

All justices began their federal judicial service on the Courts of Appeals except Kagan.
All retirement eligible dates are based on the current Rule of 80: age 65 plus 15 years federal judicial
service. 28 U.S.C. 371 (C).
                    Life Expectancy:
     U.S. White Males v. U.S. Supreme Court Justices,
                        1940-2010.
90
80
70
60
50
                                                U.S. White Males
40                                              U.S. Supreme Court
30
20
10
0
      1940   1960   1980   1990   2000   2010
Ruth Bader Ginsburg (D)
        •   Turned 77 on March 15th.
        •   Votes with the Court’s liberals in divided cases.
        •   Fully recovered from colon cancer in 1999.
        •   Underwent surgery on February 5, 2009 for
            “stage 1” pancreatic cancer. Doctors said that the
            cancer has not spread.
        •   While some doctors estimate that her odds of
            survival after 5 years are better than 50%, the
            American Cancer Society lists the 5-years survival
            odds for stage-1 pancreatic cancer at 21-37%.
            The median survival rate is 2 years.
        •   On February 21, 2009, U.S. Senator Jim Bunning
            (R-KY) made headlines when he suggested that
            Ginsburg would be dead in nine months: “Even
            though she was operated on, usually, nine
            months is the longest that anybody would live
            after (being diagnosed) with pancreatic cancer.”
        •   Her husband Martin passed away on June 27,
            2010 at age 78.
        •   Should Ginsburg retire in 2011 before the 2012
            presidential election?
Stephen Breyer (D)
      • Turned 73 on August 15, 2010.
      • Reliable moderate-liberal vote.
      • Published two books: Active
        Liberty: Interpreting Our Democratic
        Constitution (2005) and Making
        Our Democracy Work: A Judge’s
        View (2010).
      • If Obama wins reelection will
        Breyer depart in 2013, 2014, or
        2015? He will “only” be 77 in
        2015.
    Potential Obama Nominees
• Jennifer Granholm – Born in 1959, Governor of
  Michigan and former Michigan Attorney General.
• Deval Patrick – Born in 1956, first African-American
  Governor of Massachusetts, former Assistant Attorney
  General for Civil Rights in the Clinton Administration,
  close friend of Obama.
• Leah Ward Sears – Born in 1955, Former Chief Justice,
  Georgia Supreme Court.
• Martha Minow – Born in 1954, Dean Harvard Law
  School.
• Sidney Thomas – Born in 1953, Montana federal
  appeals court judge.
• Merrick Garland – Born in 1953, Federal appeals court
  judge, Washington DC.
• Diane Wood – Born in 1950, currently a judge on the
  U.S. Court of Appeals for the 7th Circuit.
                           Conclusion




• Obama’s victory in the 2008 Presidential election virtually ensured
  that the Court would remain divided as moderate liberal justices
  departed and were replaced with new moderate liberals.
• Will Ginsburg and Breyer also depart during an Obama presidency?

				
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