Supreme Court Nomination to Replace Justice Stevens

[albionmoonlight]

I don't think that we have a separate thread on this.

Tom Goldstein has provided a hella-long post laying out what may be at stake with Stevens' replacement. His conclusion--not a huge difference on the hot-button political issues about which the general public is most concerned.

SCOTUSblog » How Could The Supreme Court Shift After Stevens?

[flere-imsaho]

I believe the current handicapping has Elena Kagan as the favorite, but I'd love to see Diane Wood get the nomination, on the basis that any liberal who can routinely take on Posner & Easterbrook will be more than a match for Scalia, Roberts, Alito and Thomas (in descending order of intellectual gravitas).

But no, we probably won't see a significant shift in SCOTUS makeup until:

1. Kennedy retires
2. A "liberal" judge retires while a Republican is POTUS
3. A "conservative" judge retires while a Democrat is POTUS

As I said in the Obama thread (a year or two ago), I still expect Ginsburg to be the next to go, almost certainly while Obama is still in office.


Lastly, it'll be interesting to see if the GOP really makes good on its filibuster fireworks threats this time around. McConnell is clearly feeling his oats and probably wants some sort of victory going into the midterm elections.

[JonInMiddleGA]

Originally Posted by flere-imsaho

2. A "liberal" judge retires while a Republican is POTUS
3. A "conservative" judge retires while a Democrat is POTUS

I'd think there's probably about as good a chance of one dying in office & having to be replaced as there is one retiring while the opposition is in a position to name the replacement.

[flere-imsaho]

Agreed 100%, Jon, which is why I don't think #2 or #3 are very realistic, barring accidents or one of the parties holding the White House for, say, 3+ terms.

This is why I think Ginsburg is almost a lock to retire while Obama is still in office, and is a big reason behind Souter's retirement (and is also why Stevens held on so long).

[SackAttack]

Originally Posted by JonInMiddleGA

I'd think there's probably about as good a chance of one dying in office & having to be replaced as there is one retiring while the opposition is in a position to name the replacement.

Or a better chance, realistically, especially if the older justices feel like they have to "hold on" until someone who matches their ideology is in office. I remember reading something along those lines when I was a child, although I honestly can't remember whether that was a piece of fiction involving a fictional Court or whether it was a factual article.

[JPhillips]

I'd be all for a twenty or twenty-five year term limit on SCOTUS. The whole point of a lifetime term was to take politics out of the equation, but it's obvious retirements are based almost solely on politics.

[ISiddiqui]

But you can't time sudden deaths...

[JPhillips]

Okay, fine. Let's just kill them all every ten years.

It would at least make must watch tv.

[SackAttack]

Originally Posted by JPhillips

I'd be all for a twenty or twenty-five year term limit on SCOTUS. The whole point of a lifetime term was to take politics out of the equation, but it's obvious retirements are based almost solely on politics.

If the idea is to remove the influence of politics from the nomination proceedings, I'm afraid that would have almost the exact opposite influence.

If you knew specifically when a given justice or group of justices were to retire, can you *imagine* how politically charged a given Presidential election cycle would become?

Imagine if, in 2008, we had *known* that President McCain or President Obama would be replacing 3, maybe 4 of the sitting Justices. As nasty as that election got near the end, I can't see any way it wouldn't have been at least ten times worse than that. Instead of the possibility existing for one or the other to significantly change the composition of the Court, you'd have a near certainty. It might make for increased turnout rates at the ballot box, but you know you'd have a big uptick in claims of voter fraud or intimidation, as well.

I just don't see anyway imposing term limits on the SCOTUS doesn't make the situation worse.

[albionmoonlight]

Originally Posted by JPhillips

I'd be all for a twenty or twenty-five year term limit on SCOTUS. The whole point of a lifetime term was to take politics out of the equation, but it's obvious retirements are based almost solely on politics.

I'd think that I would like something like that, too. Maybe twenty years then they go into a forced senior status.

Basically, the system now provides too much incentive for nominating people as young as possible to the bench. I think that some great nominees are potentially lost to the Court b/c they are too old. If people only got 20 years, there would be less incentive to put a 45 year old on the bench, and a 60 year old would get more of a look than he/she does now.

Of course, mandatory retirement would make the process more political, too. If we knew for certain that three Justices would be forced to retire during a certain four-year period, it would become that much more of a factor in Presidential elections.

So, it isn't as much of a slam dunk good idea as it seems on the surface. But, on balance, I think that I would be for it.

[albionmoonlight]

dola: Sack said what I said first and better.

[molson]

The number I've heard thrown around as a potential term limit is 18 years, staggered so that each presidential term has a minimum amount of appointments. A slightly bigger court might help also.

[JPhillips]

At the executive level I'd like it to be more openly political. The idea that picking justices isn't an overtly political process is silly. It is possibly the most influential set of decisions a president can make and should be more openly discussed in the campaign process IMO.

If terms limits were ever enacted I'd like to stagger them so there were two every four years. A single president could have a huge influence on the court, but could never replace a majority and each election would have the same consequences regarding the court. Of course I didn't check the math to see if that would work.

[sterlingice]

Originally Posted by JPhillips

Okay, fine. Let's just kill them all every ten years.

It would at least make must watch tv.

Court TV suddenly got a lot more interesting

SI

[SackAttack]

Originally Posted by JPhillips

At the executive level I'd like it to be more openly political. The idea that picking justices isn't an overtly political process is silly. It is possibly the most influential set of decisions a president can make and should be more openly discussed in the campaign process IMO.

If terms limits were ever enacted I'd like to stagger them so there were two every four years. A single president could have a huge influence on the court, but could never replace a majority and each election would have the same consequences regarding the court. Of course I didn't check the math to see if that would work.

With nine justices, you'd have that one left over that might make things weird.

But even leaving that aside, each election wouldn't have the same consequences - if a two-termer seats four Justices, and successfully seats four Justices who toe his line ideologically on the "key" issues, his successor, particularly if that successor is his vice president or otherwise from his party, is now in the position of solidifying "control" of the court.

Individually, yes, the same consequences are at stake, but the SCOTUS doesn't exist in a vacuum - there are cumulative consequences under a scenario like that. If you have a bunch of one-termers, that's one thing, but there just haven't been all that many of those in recent history.

In terms of dudes who were elected to the post, rather than ascending to it for other reasons, Bush I, Carter, and then you have to go back to Hoover to find a guy who served a single term for normal electoral reasons. The majority of the rest have finished their predecessors' terms and then either served a single elected term of their own or gone home after that first term is complete. Everything in our country's history suggests that the White House just isn't likely to change hands every four years.

Again, that's not to say that your idea wouldn't work - only that if its intended goal is the depoliticization of the Court, it wouldn't have the effect you're going for.

[JPhillips]

I'd like to depoliticize retirements, but not necessarily the court.

More will have to wait until after my class.

[SackAttack]

Originally Posted by JPhillips

I'd like to depoliticize retirements, but not necessarily the court.

More will have to wait until after my class.

Understood.

Maybe the key would be to have a minimum age requirement for a Justice without having hard term limits. You still lessen the effect of long-term court packing without causing the "circle this date on a calendar and PUSH" effect.

[flere-imsaho]

The NYT does a bio of my favorite potential contender, Diane Wood: In Judicial Bouts, Diane Wood Shows a Persuasive Punch - NYTimes.com

[cartman]

Originally Posted by ISiddiqui

But you can't time sudden deaths...

You obviously have never seen a Buffalo Wild Wings commercial...