Why the Presidential Race Should Not Ignore Judicial Nominations

In this post, I complained about the total lack of discussion of judicial nominations in last week’s presidential debate. Tonight’s vice presidential debate was only slightly better. The only mention of the courts was a brief reference by Joe Biden while discussing the issue of abortion. In reality, as I explained here, there are many other issues at stake as well, including the future of constitutional protections for federalism, property rights, and freedom of speech.

In a recent post at National Review, conservative commentator Ed Whelan gave a more thorough explanation of the reasons why this election may be crucial for the future of the Court:

The topic of the Supreme Court has received very little attention in the presidential race. Neither Barack Obama nor Mitt Romney referred to it at all in his convention speech, nor did the matter come up in the first presidential debate….

Whatever the reasons for it, the silence certainly doesn’t correspond to the importance of the Supreme Court appointments that a re-elected President Obama or a newly elected President Romney may make in the next presidential term….

Control of the Supreme Court, perhaps for a generation, is very much up for grabs.

In general terms, the Court currently consists of four judicial liberals (Ginsburg, Breyer, Sotomayor, and Kagan), four judicial conservatives (Roberts, Scalia, Thomas, and Alito), and a ninth justice (Kennedy) who sometimes joins with the liberals and other times with the conservatives….

The nine justices fall roughly into two age cohorts. Four justices are in the older cohort (ages 74 to 79): Ginsburg (born in 1933), Scalia (1936), Kennedy (1936), and Breyer (1938). Five justices are in the younger cohort (ages 52 to 64): Thomas (1948), Alito (1950), Sotomayor (1954), Roberts (1955), and Kagan (1960)….

In other words, in the older cohort, there are two liberals, one conservative, and Kennedy, and in the younger cohort the conservatives have a three-to-two edge over the liberals.

It’s of course not a simple matter to accurately predict departures (voluntary or otherwise) from the Court. But there is a reasonable prospect that there will be one or two vacancies during the next presidential term, and it’s reasonable to expect that any such vacancies would come from the older age cohort.

As a hypothetical exercise, let’s assume that Ginsburg and Kennedy leave the Court during the next presidential term. If Obama is president and replaces them with liberals who are in their 50s, he will have established a liberal majority on the Court and he will also have created a four-to-three edge for liberals among the younger justices. By contrast, if a President Romney succeeds in replacing Ginsburg and Kennedy with relatively young conservatives, there will be a six-justice conservative majority on the Court, including a whopping five-to-two advantage in the younger age cohort, an advantage that might well ensure two decades of conservative dominance on the Court.

I think that Kennedy is more conservative than Whelan suggests. But that’s a minor point. The major one is that this election could have a huge impact on the future of the Court. Even if a reelected Obama gets to relace two liberal justices with younger liberals or Romney gets to replace two conservatives with younger conservatives, that will still have a profound impact. There’s a big difference between a justice who is likely to be around for only a few more years, and one who could well serve for thirty years or more. Given increasing life expectancies, a justice who is in his or her early fifties when appointed could easily serve until 2050 or even later.

I’m not saying this should be the only issue in the campaign or even the single most important. But it deserves a lot more attention than it has gotten so far.

UPDATE: A critique of this post claims that it is inconsistent for me to predict that a justice appointed by the next president could serve until 2050 (when he or she will be in their late 80s), but also that there is a good chance of one or more justices retiring in the next four years, even though they will be younger than that. I don’t think there is any inconsistency here. Life expectancy and the quality of medical care are likely to continue to improve, so the next generation of justices could easily live longer and remain healthy longer than the present one. Moreover, even if justices appointed by the next president serve “only” until 2040 (when they would be in their late 70s, like the oldest current justices), that’s still a very long tenure.