1. Choosing Judges II: The U.S. Supreme Court Artemus Ward Department of Political Science Northern Illinois University

2. Introduction We will be discussing the succession process on the Supreme Court. Before there can be an appointment, there must first be a vacancy. Vacancies are most often created by retirements. Because retirement decisions are partisan, we can expect conservative justices to time their departures to coincide with Republican presidents and liberal justices to depart under Democratic administrations. We will also discuss the specific situations of the current members of the Court and who is most likely to retire next. We will then turn to presidential strategy and the role of the senate and the American people in the appointment process.

3. High Court Succession 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.

4. Retirement Eligibility of the Supreme Court, circa 2009 JusticeDate of BirthYear of Initial Service on Federal Bench Date Retirement Eligible John Paul Stevens (R)Apr 20, 1920Nov 2, 1970Nov 2, 1985 Ruth Bader Ginsburg (D)Mar 15, 1933Jun 30, 1980Mar 15, 1998 Antonin Scalia (R)Mar 11, 1936Aug 17, 1982Mar 11, 2001 Anthony M. Kennedy (R)Jul 23, 1936May 30, 1975Jul 23, 2001 Stephen Breyer (D)Aug 15, 1938Dec 10, 1980Aug 15, 2003 Clarence Thomas (R)Jun 28, 1948Mar 12, 1990Jun 28, 2013 Samuel Alito (R)Apr 1, 1950Apr 27, 1990Apr 1, 2015 Sonia Sotomayor (D)Jun 25, 1954Aug 12, 1992Jun 25, 2019 John Roberts, Jr. (R)Jan 27, 1955Jun 2, 2003Jan 27, 2020 Note: All justices began their federal judicial service on the Courts of Appeals. All retirement eligible dates are based on the current Rule of 80: federal judges are eligible to retire after age 65 when their age plus years of service on the federal bench total 80. 28 U.S.C. 371 (C).

5. Figure 1. Life Expectancy: U.S. White Males v. U.S. Supreme Court Justices, 1940-2000. Average life expectancy for Supreme Court justices is 87 while the average life expectancy for white males is ten years less.

6. John Paul Stevens (R) Born April 20, 1920. At the end of his tenure he was the Court’s most liberal member. Underwent heart surgery, had a pacemaker, and was treated for prostate cancer. Commuted from his home in Florida when the Court was in session. Retired at age 90 in 2010. Would have surpassed Oliver Wendell Holmes, Jr. as the oldest sitting justice if he remained on the Court until Feb. 24, 2011 and overtaken Justice William O. Douglas as the longest-serving justice in history if he served beyond July 15, 2012. So why did he retire short of these milestones?

7. Ruth Bader Ginsburg (D) Born March 15, 1933 Consistently part of the Court’s liberal wing. She was diagnosed with colorectal cancer in 1999 and underwent surgery followed by chemotherapy and radiation treatments. In 2009 she underwent successful surgery for pancreatic cancer. Ginsburg would be “only” 80 after the next presidential inauguration in 2013.

8. 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).

9. 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. –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. Sonia Sotomayor was confirmed by the Senate 68-31 in 2009.

10. 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 were successful in helping to sink his nomination. Robert Bork’s nomination was defeated in the Senate 42-58.

11. Conclusion While justices seek to retire under like-minded presidents, they are constrained by such institutional factors as the court term, presidential-election-year politics, and the “rule of eight.” While many current members of the Court have been eligible to retire for years, they have chosen not to step down. Presidents seek ideologically- similar nominees and use obscuring tactics to minimize potential criticism. The Senate and the people, through interest-group participation, play an important role in the process and can thwart the president’s nominees.