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?