ABC News is reporting the White House is preparing for the possibility of two Supreme Court vacancies, as both Justice Stevens and Justice Ginsburg could step down. If so, this could help explain the Adminsitration’s tardiness in making other judicial nominations.
daftpunkydavid says:
why is it surprising they are getting ready to replace these 2 justices??? one is 90+ years old (do you know what male life expectancy in the us is?) and the pancreatic cancer surgery of the other was recently revealed (again, do you know what the 5-year survival rate of pancreatic cancer patients?)… really, what is surprising, is that this announcement is surprising to you mr adler.
February 4, 2010, 12:44 pmruuffles says:
If this is the case, then Obama could very well replace the entire liberal wing, if Breyer steps down in 2011. This would keep the new justices intact for at least 10-15 years.
The last time a president appointed three new justices was Reagan, though it took him two terms. The last time a president appointed three new justices in a single term was Nixon (Burger, Blackmun, Powell, Rehnquist).
February 4, 2010, 12:49 pmKharn says:
Bill & Hill? :-p
February 4, 2010, 12:50 pmOff Kilter says:
It would be 4 if he considered the court-packing precedent more seriously…
February 4, 2010, 12:54 pmPer Son says:
This will not be news until Kennedy or a conservative retires (if it happens during a Dem. administration). The fight to replace him will be the biggest bit of political warfare that I probably will witness in my limited 33 years of life.
February 4, 2010, 12:59 pmruuffles says:
I’d say it’s news in the sense that Obama, Ginsburg, and Stevens avoid the mistake of Carter, Brennan, and Marshall. Brennan and Marshall waited too long and were forced to retire under Bush I. Breyer (same age as Scalia and Kennedy) could stick it out for another term or two.
February 4, 2010, 1:05 pmCornellian says:
But is Ms Kagan ready for her close up?
February 4, 2010, 1:10 pmGulf Coast Bandit says:
How often have there been two vacancies at once?
February 4, 2010, 1:23 pmkrs says:
I saw Linda Greenhouse and Pam Karlan at the robe store… we’re all doomed.
daftpunkydavid, I think the surprising thing about the article is the suggestion that there might be 2 vacancies *at the end of this term*.
That said, people have anticipated Justice Stevens’s retirement for more than 15 years. If any of the Justices is actually immortal, he’s the most likely bet. See this David Garrow piece from 1994 (emphasis added):
February 4, 2010, 1:27 pmjosh bornstein says:
I don’t understand the OP. Why would this possibility (which is the issue that all the above commentators have chosen to discuss) influence the speed (or lack thereof) of nominating judges for all of the lower-court vacancies?
Is it a matter of the Obama administration wanting to keep their powder dry? If so, this seems stupid. I would think that it would take a month to come up with a long list of names for trial court judges. Maybe another few months for a list of appellate judges. It’s hard to imagine that–one full year later–an administration would not have made recommendations for all the appointments. . . especially since the Senate is controlled by the same political party, and since there are enough Republicans that are on record as opposing filibusters (in any non-extraordinary case) for judicial appointments.
February 4, 2010, 1:32 pmDave N. says:
The last time was when Justice O’Connor retired and Chief Justice Rehnquist died.
February 4, 2010, 1:33 pmConstantin says:
At least this way he won’t have to choose between Ayers and Wright.
I kid, I kid. Mostly.
February 4, 2010, 1:35 pmChrisHo says:
Is George Clooney available?
February 4, 2010, 1:37 pmDave N. says:
Let’s not forget, on the other side of the ideological coin, Justice O’Connor waited until after the 2004 elections to retire. Even more striking, Chief Justice Rehnquist was obviously in failing health in 2003-2004 and hung on even though there was a Republican in the White House.
Just a few states difference in the 2004 Electoral College and President John Kerry would have appointed both a Chief and an Associate Justice. I strongly doubt he would have considered either John Roberts or Samuel Alito.
February 4, 2010, 1:38 pmDC says:
Ginsburg may well retire after this term, but there’s nothing in this article that provides any actual facts in support of that. The only new factual reporting I see in the whole piece comes in the first two sentences:
There’s no source given for the first claim, and the second is so speculative as to be almost meaningless. That some folks “believe” that Ginsburg “could” retire doesn’t tell us anything. Reduced to its core, this is really just about the bare factual assertion that administration lawyers are preparing for two vacancies. That may in fact be true, but in this form the claim is so weak that it fails to support the rest of the article. Really, this piece should have ended after the headline.
February 4, 2010, 1:46 pmp.d. says:
Two things:
(1) The Coakley loss probably made this outcome much more plausible, though given reports about how the Justices try to avoid major personnel shifts given the delicate balance and relations among members of the Court(hence spacing out retirements), this would be pretty surprising.
(2) How crazy would it be if a PENDING Supreme Court nomination became midterm election fodder? Unless Obama is prepared to PROMPTLY nominate two replacements, I would be pretty surprised if he could successfully confirm two nominees prior to OT10. If this does happen, I’d expect nominees with bipartisan appeal (Kagan + Lynch 2d Cir.), but rushing through two nominations might not go over well.
February 4, 2010, 1:46 pmegd says:
By my count, if there are 2 more vacancies before 2012, President Obama will be the first 1-term president since W.H. Taft to have 3 appointees to the Supreme Court (not counting elevations from associate to Chief Justice as an appointment).
That is, assuming that President Obama stays a 1 term president. Otherwise, Nixon got 3 appointments in his first 4 years as well (although not nearly so quickly).
February 4, 2010, 1:50 pmdcperson says:
presumably picking people to fill judicial positions takes time and resources…people to research who would be appropriate, investigate their backgrounds, etc. And although I don’t know it for a fact, it would seem like the skill set you’re searching for at SCOTUS level would be different from what you’d look for in a Circuit judge (therefore making the two not interchangable). Similarly, appellate and trial court judges require different skills (though are frequently treated interchangeably).
So…if the people in the administration are thinking they may have to fill two high profile spots at the end of the term (i.e. relatively quickly), there’s a lot of resources going into that task.
February 4, 2010, 1:55 pmArtemus says:
Oh great. There go our civil liberties.
February 4, 2010, 2:13 pmDave N. says:
Nixon made 4 appointments in his first term: Burger, Blackmun, Powell, and Rehnquist. Nixon made no Supreme Court appointments in his abbreviated second term.
February 4, 2010, 2:23 pmAnon321 says:
To the extent that clerkship hiring has become a good indicator for retirement plans, I note that Ginsburg has hired four clerks for OT 2010, but only one thus far (to the best of my knowledge) for OT 2011. Unless there’s something health-related that we don’t yet know, I’d be surprised if Ginsburg retires at the end of this term.
February 4, 2010, 2:35 pmJ. Aldridge says:
I think when both are ready to retire it will be on a stretcher.
February 4, 2010, 2:35 pmegd says:
Yes, and he also made 3 appointments in his first term.
I was just pointing out that Obama may be the first 1-term president to have more than 2 appointments (since I think we can still safely call Nixon a 2-term president).
February 4, 2010, 2:48 pmrequired says:
It should be the exact opposite, you’d want to get the lower courts filled and see how far you an get with judges given the current judiciary committee and senate. Maybe even push some of your short list to fill courts below the USSC and see if any hidden secrets pop up now instead of when they are up for the USSC. Pretty poor political management if that is the reason.
February 4, 2010, 3:06 pmSteve says:
DC appears correct that there is no actual news here. If you were an Obama aide and you knew NOTHING about the retirement plans of any of the Justices, it would still be a critical part of your job description to be prepared for a potential retirement at any time. Preparing for the possibility of two vacancies could be based upon actual inside knowledge, but it could be nothing more than prudence. After all, preparing for a second vacancy doesn’t require that much additional work because you’re vetting the same pool of candidates either way; you might strategize a little regarding timing and such, and that’s about it.
Conventional wisdom also holds that the Justices try to avoid creating two simultaneous vacancies if they can possibly help it.
February 4, 2010, 3:08 pmDave N. says:
Adding to what Steve said, Chief Justice Rehnquist died after Justice O’Connor announced her retirement. Justice O’Connor (who reportedly wanted to spend time with her ill husband) agreed to wait and continued to serve until Justice Alito was confirmed several months after Chief Justice Roberts was confirmed.
(This might make an interesting future bar bet: Not counting Associate Justices elevated to Chief Justice, name the Associate Justice who actually served on the Supreme Court with the person nominated to replace that Justice on the Supreme Court)
February 4, 2010, 3:24 pmTalkingHead says:
If true and Stevens and Ginsburg, more data points favoring the strategic retirement hypothesis.
February 4, 2010, 3:27 pmLindsey Abelard says:
This guarantees that there is no possibility of Roe vs. Wade being overturned before, say, 2030. The “pro-life” people can huff and puff all they want, but this is the reality of the situation.
February 4, 2010, 3:32 pmJ. Aldridge says:
I don’t think you have to be “pro-life” to huff and puff over Roe. It is just horrible law no matter how you twist or spin it.
February 4, 2010, 3:57 pmJacob Berlove says:
No Lindsey. If a Republican wins in ’12, and Kennedy steps down…
February 4, 2010, 4:06 pmEdward A. Hoffman says:
There is little reason to think Justice Ginsburg will retire anytime soon. Her cancer was detected at a very early stage, so her prognosis is far better than that of a typical pancreatic cancer survivor. Even after her surgery, she has publicly said she intends to remain on the bench for several more years. Something may have happened to change her mind since then that the public doesn’t know about, but the article offers no evidence of this. Even if the White House really is planning for two vacancies, the administration may simply want to be ready in case the unexpected happens.
February 4, 2010, 4:16 pmArthurKirkland says:
After an extended period in which Justices nominated by Republicans constituted a six- or seven-seat majority, the more Obama nominations, the better — up to a point.
That point, for me, is between five and six (counting Justice Sotomayor).
I also would prefer that nominations be triggered by resignations rather than by anything less pleasant.
February 4, 2010, 4:27 pmtheobromophile says:
Politically, it’s better for liberal Justices to step down after cases like Citizens United, which the media can twist to say that it favours corporate interests over the little guy, than after cases like Kennedy v. Louisiana, which angered a lot of Americans.
February 4, 2010, 4:41 pmDjDiverDan says:
My god! Something on which I agree entirely with J. Aldridge! I am no pro-lifer; in fact, I really think that, as a policy matter, trying to restrict abortion (like trying to restrict prostitution) in any way other than ensuring that the procedures are safe is just stupid public policy. But the manner in which the Blackmun majority constitutionalized a “Right to Abortion” in Roe v. Wade was just about the worst case of judicial over-reaching into policy making I have ever seen.
Now if the Court will just overrule the Slaughterhouse Cases, and link Roe v. Wade to the unenumerated rights protected under the 9th Amendment and the “priviledges or immunities” protected by the 14th Amendment, I’d find the right created in Roe v. Wade a whole lot easier to accept as having at least a scintilla of textual basis in the Constitution. There, I’m sure I’ve found a point on which I’m confident J. Aldridge will disagree with me, and I can sleep easier tonight.
I really mean no offense J. Aldridge – just a light-hearted jab at someone whose posts I enjoy reading (even if I disagree with most of them) and find thought-provoking.
February 4, 2010, 4:56 pmAnonsters says:
Aww, Stevens, don’t go! Zombie Justice Stevens for the bench!
Maybe Obama will nominate Russ Feingold. That’d be awesome.
February 4, 2010, 5:03 pmdrunkdriver says:
Stevens would be no surprise. Ginsburg, as noted above, caught her cancer surprisingly early and hopefully has many years of a full life ahead of her. Whether she wants to live it on the Court or with her family, I guess we’ll figure out soon.
February 4, 2010, 5:07 pmyankee says:
How many Americans have ever heard of Kennedy v. Louisiana? Very few, is my guess.
February 4, 2010, 5:07 pmJoe says:
Now if the Court will just overrule the Slaughterhouse Cases, and link Roe v. Wade to the unenumerated rights protected under the 9th Amendment and the “privileges or immunities” protected by the 14th Amendment, I’d find the right created in Roe v. Wade a whole lot easier to accept as having at least a scintilla of textual basis in the Constitution.
You don’t need to overrule SC to cite the 9th Amendment, which various justices have in privacy cases down to Planned Parenthood v. Casey. In fact, the three court panel in Roe relied on the 9A. Justice Harlan imho provides a lot more than a “scintilla” of textual basis for a right to privacy in Poe v. Ullman, with a good assist by Charles Fried. Fried considers abortion different as to governmental interest, but it is part of the right in question all the same, one not “created in Roe” at any rate. As to this “right to abortion” … is this akin to the “right to burn an American flag,” or such?
As to stretchers, isn’t that what Thomas said back in the day?
February 4, 2010, 5:21 pmTom in Houston says:
The preparation for two S. Ct. vacanacies may explain the delay in nominating lower court judges, but it doesn’t justify it.
February 4, 2010, 5:21 pmNunzio says:
If true, this could be precarious for Obama. The decision in McDonald will come down with Sotomayor most likely in the dissent. Conservatives will argue that this shows Obama is secretly against gun rights and so will demand that his nominees pledge fealty to the 2nd Amendment/14th Amendment right to own a firearm in the home.
And gun rights will replace abortion rights and gay marriage in the culture war for the 2010 mid-term election season.
Of course, I speculate.
February 4, 2010, 5:35 pmq says:
5.5 justices appointed by Obama would be an amazing accomplishment, even for him. :P
February 4, 2010, 5:35 pmLTR says:
Rehnquist got ill in late 2004 not during 2003-04 term.
February 4, 2010, 5:42 pmJHE says:
Justice Stevens is a major ass for not retiring during the Bush admin. President Ford appointed you, motherf****. And yet you deliberately wait until someone of the other party is elected…
February 4, 2010, 5:51 pmJim Miller says:
If you want an explanation for the administration’s “tardiness in making other judicial nominations”, you might consult the old quip about incompetence, rather than malice or conspiracy. (Or, if you are feeling kind, inexperience rather than incompetence.)
February 4, 2010, 5:54 pmtroll_dc2 says:
I don’t know who the replacement Justice was, but the only Justice who seems to fit the answer is Hughes. He was not elevated to Chief Justice. Rather, he resigned so that he could run for president against Wilson. He became Chief Justice when Taft died.
February 4, 2010, 6:00 pmLTR says:
Supreme Court Justices would never create two parallel vacancies on purpose. Remember when O’Connor stepped down, Rehnquist was expected to beat the cancer and serve another year. Souter said he was shocked when he heard Rehnquist died since he seemed to be slowly recovering at the time.
Only way this happens is if both Stevens and Ginsburg are suddenly both physically unable to serve. Last time this happened with Black and Harlan in 1971. My guess is that Stevens is still reasonably healthy but wants to retire so he can sort his legacy and enjoy sunshine some more. Ginsburg wants to stay (she in fact stated that she plans to stay on Court well into her 80s which would presume past 2013) but she might not be able to. If she can’t go no more, Stevens stays another year.
February 4, 2010, 6:04 pmruuffles says:
If you’re not being sarcastic, I’d just like to point out that by Eisenhower, the entire Court was appointed by a Democrat, after five terms of FDR and Truman. Just sayin’.
February 4, 2010, 6:06 pmDave N. says:
Justice Hughes was replaced on the Court by Justice John Hessin Clarke, who served from 1916 to 1922.
The answer to the bar bet is Justice O’Connor.
After she announced her retirement, President Bush nominated John Roberts to fill her seat. During the confirmation process, Chief Justice Rehnquist died.
President Bush withdrew then Roberts’ nomination to be an Associate Justice and nominated him to become Chief Justice instead (had Rehnquist died either 3 months earlier or 3 months later, there could easily be a different Chief Justice today). Samuel Alito subsequently was the second nominee for O’Connor’s seat.
As I previously mentioned, O’Connor stayed on the Roberts Court until Alito was confirmed.
February 4, 2010, 6:45 pmLindsey Abelard says:
I assume you consider it bad law because it made what should have been a state-level issue into an issue of federal jurisdiction.
February 4, 2010, 6:48 pmDave N. says:
Those are the breaks. Remember, President Ford named Stevens to replace Justice William O. Douglas, and Ford had actually led a movement to impeach Douglas at one point.
February 4, 2010, 6:49 pmDave N. says:
That’s why I consider it bad law. I would rather have a political issue decided by the, um — what do we call them? — oh, that’s right, the POLITICIANS.
February 4, 2010, 6:51 pmSuperSkeptic says:
I agree Arthur, assassination would certainly be “less pleasant.”
***
Perhaps. But what percentage of those who have ever heard of the opinion actually agree with it?
***
For the Court historians out there: Does ideological “drift” ever go Left -> Right?
February 4, 2010, 7:30 pmDave N. says:
Arguably, Justice Byron White was much more conservative than President Kennedy intended.
February 4, 2010, 7:45 pmMartinned says:
And what exactly is Bush jr. supposed to have in common with Ford?
Huh? The Court has been drifting right since Earl Warren retired, hasn’t it?
February 4, 2010, 7:50 pm1040 says:
It is a sign of how mainstream militant black socialist fascist terrorism has become that constantin did not feel the need to name farrakhan in his list there.
February 4, 2010, 7:55 pmDave N. says:
They both like Dick Cheney.
February 4, 2010, 7:55 pmSuperSkeptic says:
It is usually “measured” by the appointing President.
February 4, 2010, 8:02 pmChris Travers says:
I agree. If only the court had applied the Casey test from the beginning!
February 4, 2010, 8:10 pmMark Field says:
That’s pretty subjective. I’d call Jefferson and Madison both “left”, and their appointees turned out much more “conservative” than they expected. But, and it’s a big one, the terms “left” and “right” don’t easily apply to that era; I use it only because both favored the French Revolution long after Burke and others had given up on it.
Another candidate would be Hughes.
The problem with your question is that the terms “left” and “right” aren’t easy to apply to US politics before FDR, and the Dem presidents have appointed only 3 justices in the last 40 years (with Sotomayor being too early to call).
February 4, 2010, 8:12 pmMatthew Dundon says:
JPS and RBG know the politics very well. With 59 Senators, Obama could appoint two Justices who are down-the-line, no-risk-whatever liberals, and young ones to boot. Getting one cloture vote from 41 Republicans is easily done.
If there’s only one retirement this spring, Obama can get his one liberal through. But in 2011, with some Republican pick-ups in the Senate, the perception that Obama has had his fair share of appointment for his term, and re-election looming, Obama could be forced to a significantly more risky pick — a Clinton appointee, for example, with a solidly mixed record in terms of appellate rulings for the corporations and the cops.
February 4, 2010, 9:07 pmJohn Herbison says:
The last time that two seats on the Supreme Court were vacant at the same time was when Hugo Black and the second John Marshall Harlan retired within a few days of one another in September of 1971. Justice O’Connor served until Justice Alito took office, in that she stipulated that her retirement would take effect upon confirmation of her successor. John Roberts was initially nominated for the O’Connor Associate Justice seat, but when Chief Justice Rehnquist died, Mr. Roberts was nominated for Chief Justice and subsequently confirmed (while Mrs. O’Connor continued to serve as Associate justice).
February 4, 2010, 11:35 pmneurodoc says:
I don’t understand your point about O’Connor. Are you suggesting that she held on longer because she wanted to give Kerry a chance to appoint her replacement rather than guarantee it to Bush? Anything to support such speculation, especially in view of her Republican credentials? Or are you saying she seemed not to be playing a political game?
As for Rehnquist, we can infer that he wasn’t playing a political game and who would get to nominate his replacement was a consideration of no or little importance, can’t we?
February 5, 2010, 8:18 amneurodoc says:
It makes sense intuitively that the earlier cancer is detected, the more likely it is that it won’t prove fatal. Intuition isn’t everything, however, and sometimes earlier detection correlates with greater mortality, since especially aggressive malignancies may announce themselves sooner. Ginsburg was asymptomatic when her cancer was detected quite fortuitously in the course of an abdominal CT done for unrelated reasons. That’s certainly encouraging, but I can’t imagine any life insurance company being will to sell her a policy at standard rates. It would be a foolish bet if they did so.
February 5, 2010, 8:27 amBABH says:
My guess would be somewhat more than the 30% of Americans who oppose the death penalty in general.
February 5, 2010, 8:55 amFrank Drackman says:
Don’t wanta sound like a Jerk, but the chances of Justice Ginsberg living through Obama’s term are about the same as the Chicago Cubs winning the 2010 World Series.
February 5, 2010, 9:26 amSlim to None.
The 5 yr survival rate for pancreatic adenocarcinoma is <5% and in a large number of that 5% the initial diagnosis was probably wrong. Chronic Pancreatitis can be indistguinishable from Carcinoma histologically.
Dave N. says:
Neurodoc,
My point was that Justice O’Connor was not playing the political game. If she was, she would have retired in 2003. What I honestly think is that her husband’s physical decline began after the 2003.
As for Chief Justice Rehnquist, I don’t think he was playing a political game either. He liked being Chief Justice and while I am sure he fervently desired an ideologically similar replacement as Chief, he also held on despite increasing health issues.
February 5, 2010, 11:37 amneurodoc says:
How many justices have died while still serving full-time? What is the average age at retirement? They must like the job, since they do hold on to it, don’t they? What makes it so great, the intellectual stimulation?, the interaction with other justices and clerks?, lack of hobbies?, not too demanding?, the emoluments of office, whatever they are? Was Souter exceptional in resigning young?
February 5, 2010, 2:54 pmepluribus says:
Frank Drackman:
Well then, why don’t you give up trying to make online medical diagnoses and prognoses and let the physicians in charge of the case do so. Are you at liberty to disclose which medical school you graduated from, and what state(s) you are licensed to practice medicine in?
February 6, 2010, 2:24 pmJohn Herbison says:
For a justice to die while still in active service is an unusual occurrence. Prior to Chief Justice Rehnquist, the last sitting member of the Supreme Court to die in office was Robert Jackson in 1954.
It is not unusual, though, for a member of the Court to serve until he is at death’s door. Hugo Black lived for eight days after his retirement in 1971. John Marshall Harlan II lived for three months and six days after his retirement the same year. Thurgood Marshall lived for fifteen months after his retirement in 1991. Felix Frankfurter retired in 1963 after suffering a stroke; he died thirty months later. William Douglas continued to serve on the Court after suffering a stroke at the end of 1974; he retired in November of 1975 (and lived until January of 1980). Seven other members of the Court had agreed to pass to the next term any argued case in which Justice Douglas’s vote would have made a difference.)
February 6, 2010, 5:20 pmneurodoc says:
Thanks for that answer. But you didn’t say what is the average age at which they retire or accept senior status, recognizing that life expectancy has increased over the course of decades. Do federal district court and court of appeals judges hang on as long as the Supremes? They’re like the Strom Thurmonds and Robert Byrds in that most of them go on for as long as they can?
February 6, 2010, 11:47 pmneurodoc says:
Do you doubt the diagnosis reported in the newspapers is the correct one or that the prognosis is that grim for this tumor even when it is discovered incidentally, as it was in Ginsburg’s case? In your opinion, am I a jerk too for observing that no life insurance company would be likely to sell her a policy at a standard rate?
February 6, 2010, 11:51 pm