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Why Souter's Replacement Matters Even if She has the Exact Same Views as Souter:

The MSNBC story on liberal Justice David Souter's likely retirement states that his departure "isn't likely to change the court's liberal-conservative composition, because his successor will almost certainly be moderate to liberal." The Washington Post similarly reports that "Souter's retirement is unlikely to alter the ideological balance on the closely divided court because Obama is certain to replace the liberal-leaning justice with someone with similar views." More generally, we often hear claims that the appointment of new justices whose interpretive philosophy is similar to those they replace is relatively unimportant because it won't affect the balance of the Court.

This conventional wisdom is wrong. It ignores the fact that the newly appointed justice will likely serve for many years to come, during which time the composition of the rest of the Court will change. Today, the average Supreme Court justice serves for over 26 years. Over such a lengthy tenure, there is likely to be turnover among the other justices, and the current appointee's ideology may have a major impact on the balance of power over the long run even if its immediate effect is insignificant.

For example, let's assume that Justice Souter's replacement always votes exactly as Souter himself would have. So long as the rest of the Court remains the same as today, nothing will change. However, if Obama is then able to replace even one of the five more conservative justices, the balance of power would become very different than it would have been had Souter been replaced by a more conservative justice than himself. What would have been a 5-4 conservative majority will become a 5-4 liberal one. Justice Antonin Scalia, for example, is 73 and could eventually be replaced by a liberal Obama appointee - especially if Obama wins reelection in 2012. Moreover, Souter's replacement will likely serve for decades to come. So Scalia's possible replacement by an Obama appointee is just one of many events that could happen during the tenure of Souter's successor that could make his or her ideology extremely important.

In theory, if Scalia is replaced by a liberal in 2012 and Souter himself remains on the Court, the ideological balance will be exactly the same as if Souter were replaced by a younger ideological clone of himself in 2009. However, the "younger" part is a key distinction between the two. Souter's replacement is likely to be much younger than he is, and will therefore probably be around a lot longer than Souter would have been had he chosen not to retire this year. Thus, he or (more likely) she will be affecting the Court's ideological balance for many years longer than Souter would have been able to do.

For these reasons, Souter's replacement will matter a great deal even if he or she has little immediate impact on the ideological balance on the Court.

Related Posts (on one page):

  1. How Souter's Replacement Could Change the Court:
  2. Why Souter's Replacement Matters Even if She has the Exact Same Views as Souter:
  3. Souter Retiring:
  4. The Missing Souter Clerks:
MarkField (mail):
I love the logic here. Anybody Obama nominates "matters" under your theory. The fact is that the most liberal imaginable nominee would not change the short term votes on the Court. As for long term, who knows what other vacancies will arise, when they'll arise, or who will appoint the successors.
5.1.2009 12:08am
J. Aldridge:
I imagine it will be difficult to replace Souter with someone more liberal.
5.1.2009 12:08am
Joseph Slater (mail):
Well OK, but couldn't those two quotes reasonably be read to refer to the immediate or at least short term? Neither quote says "Souter's replacement won't matter"; they both say it probably won't "alter the balance on the court." Which, in the short term, is true. Then if Scalia gets replaced, that will matter and I'm sure the press will note that it will matter.
5.1.2009 12:09am
HoyaBlue:
Wow, I just realized how many potential appointments Obama might make. I don't know if it would be unprecedented, but it would certainly be interesting.

Assume he serves a second term.

By the time 2016 rolls around, this would be the age breakdown of the court's current composition:

Stevens 96
Scalia 84
Ginsberg 83
Kennedy 80
Breyer 78
Thomas 68
Alito 66
Roberts 61
[Souter replacement]


It's probable that by the end of a second term, Obama will have appointed the majority of the sitting Supreme Court Justices. It's fairly certainly that he will have appointed at least 4. Possibly as many as six.

That's not really a statement for or against such an idea. I sort of support it since I'm an Obama supporter, but as general practice, that many appointment by one president seems dangerous.
5.1.2009 12:15am
Ilya Somin:
Anybody Obama nominates "matters" under your theory.

That's right. Anyone Obama nominates will matter, because Supreme Court justices have enormous power, and serve for many years.
5.1.2009 12:18am
Ilya Somin:
Well OK, but couldn't those two quotes reasonably be read to refer to the immediate or at least short term?

Neither reporter makes any such qualification. Moreover, both completely ignore the potential longterm implications, which is a sign that they assume those implications don't matter much (certainly not enough to mention even briefly in their stories). My purpose is less to nitpick these particular articles than to criticize the much more general mindset they represent.
5.1.2009 12:20am
James Gibson (mail):
The biggest problem with the logic is the belief that whoever he appoints will always vote the way the ultra-left wants. Souter was in fact viewed as a conservative until the abortion vote. Stevens also was viewed as moderate to conservative when he was appointed. Its extremely hard to say how a justice will rule when he/she is given the position of a SCOTUS justice. That is to say other then Ginsberg who from day one has shown little judgement and even less honesty.

But that in the end makes the bigger point, who ever he nominates will still have to go through the Senate. And though the Senate is now firmly in the Democrats hands the question will be can they put forth an ultra-liberal to a Senate with a decent number of moderate Democrats. Dems who will be up for re-election in 2010 and then in 2012. Obama may be able to be re-elected due to public support for the first Black president. But how many democratic party representatives will be sacrificed in the process. I doubt any moderate dem will want to have a second Ginsberg on their record at re-election time.
5.1.2009 12:28am
James Gibson (mail):
The biggest problem with the logic is the belief that whoever he appoints will always vote the way the ultra-left wants. Souter was in fact viewed as a conservative until the abortion vote. Stevens also was viewed as moderate to conservative when he was appointed. Its extremely hard to say how a justice will rule when he/she is given the position of a SCOTUS justice. That is to say other then Ginsberg who from day one has shown little judgement and even less honesty.

But that in the end makes the bigger point, who ever he nominates will still have to go through the Senate. And though the Senate is now firmly in the Democrats hands the question will be can they put forth an ultra-liberal to a Senate with a decent number of moderate Democrats. Dems who will be up for re-election in 2010 and then in 2012. Obama may be able to be re-elected due to public support for the first Black president. But how many democratic party representatives will be sacrificed in the process. I doubt any moderate dem will want to have a second Ginsberg on their record at re-election time.
5.1.2009 12:28am
J. Aldridge:
That's right. Anyone Obama nominates will matter, because Supreme Court justices have enormous power, and serve for many years.

That reminds me: Framers had little fear over the judiciary because it was the weakest branch.

Little did they know....
5.1.2009 12:32am
Jon Roland (mail) (www):
Many of you seem to think that Elena Kagen has an inside track on the nomination, and perhaps you have inside information, but I see a pattern in Obama's appointments that indicate he might prefer a leading constitutional scholar like Cass Sunstein, who could be moved from being head of the White House Office of Information and Regulatory Affairs. In any case, I suspect it will be someone he knows well personally, which means a edge to members of the U Chicago Law School.

Does anyone know whether Kagen wants the job? Not everone would like to have it, a job that looks cool to outsiders but which some insiders have described as drudgerous.
5.1.2009 12:33am
aaronM (mail):

Ginsberg who from day one has shown little judgement and even less honesty


. . .
5.1.2009 12:33am
Ilya Somin:
The biggest problem with the logic is the belief that whoever he appoints will always vote the way the ultra-left wants.

Actually, "the logic" assumes no such thing. The nominee's ideology will matter even if the new appointee votes exactly the same way as Souter (who votes the way the left wants the vast majority of the time, but not always). Obviously, if Obama appoints someone more moderate than Souter, that too will have an important impact, as that person might potentially vote with the conservative bloc on at least some issues.
5.1.2009 12:37am
Cornellian (mail):
"That reminds me: Framers had little fear over the judiciary because it was the weakest branch.

Little did they know...."

I'd say they were quite prescient. I don't have any fear of the judiciary either.
No one can seriously suggest the Supreme Court has anywhere near the power of Congress or the President.
5.1.2009 12:45am
Sarcastro (www):
Cornellian hasn't heard about the SCOTUS' invasion of Iraq?

I hear they are an army made entirely of secretly married gays!
5.1.2009 12:52am
Volokh Groupie:
If Sunstein gets nominated it'll be hilarious to see him exposed as a hypocrite on the 'incrementalist' bs he supposedly espouses.

And now cornellian is channeling Bickel? Wow.
5.1.2009 1:01am
My Middle Name Is Ralph:

But how many democratic party representatives will be sacrificed in the process. I doubt any moderate dem will want to have a second Ginsberg on their record at re-election time.


The general electorate doesn't care much about how senators vote on supreme court judges. I'd be surprised if the Ginsburg vote was ever much of a campaign issue for any senator who voted for her.
5.1.2009 1:05am
Dave N (mail):
Here are the current members of the Court and the Justice each incumbent replaced:

1. John Roberts replaced William Rehnquist
2. John Paul Stevens replaced William O. Douglas
3. Antonin Scalia replaced William Rehnquist
4. Anthony Kennedy replaced Lewis Powell
5. David Souter replaced William Brennan
6. Clarence Thomas replaced Thurgood Marshall
7. Ruth Bader Ginsburg replaced Byron White
8. Stephen Breyer replaced Harry Blackmun
9. Samuel Alito replaced Sandra Day O'Connor

Of the current members of the Court (including Souter), all but Ginsburg and Breyer were expected to be as, or more conservative than, the justice he or she replaced.

Ginsburg is the only liberal justice to replace a conservative justice--though Justice White made a point of waiting until a Democrat was in the White House before retiring.
5.1.2009 1:12am
Volokh Groupie:


The general electorate doesn't care much about how senators vote on supreme court judges. I'd be surprised if the Ginsburg vote was ever much of a campaign issue for any senator who voted for her.



yeah, I think conservatives need to understand that Ginsberg isn't exactly Brennan or something

that said, I think people like Bennett and Lincoln will think about it w/upcoming senate races and a lot of reddish state dems (tester/webb/landrieu) will also need to think hard about the type of ammo it would give opponents
5.1.2009 1:13am
Bruce:
It's interesting, from the title I thought you were going to argue that a new justice with the same views would have *less* power to achieve her results because she would have less influence over her fellow justices.
5.1.2009 1:18am
J. Aldridge:
Cornellian: They can revise the constitution to extend federal power without a constitutional convention. They are every bit as powerful and dangerous as Congress and the President because they can too easily circumvent democracy.
5.1.2009 4:01am
Oren:



Of the current members of the Court (including Souter), all but Ginsburg and Breyer were expected to be as, or more conservative than, the justice he or she replaced.


Indeed. It's ridiculous the way some folks pretend like the court hasn't moved right since Warren. Maybe it should never have moved left to begin with, but it did move left, then right. And here we are.
5.1.2009 9:22am
David Chesler (mail) (www):
I missed it. Who are the pundits that are saying Obama should just pull a name out of a hat because it doesn't matter? Conversely, what's incorrect about the quoted stories?
5.1.2009 9:35am
Joseph Slater (mail):
Good list, Dave N.

Also, I doubt this is going to be a big issue in any election for any blue dog dem. Can anybody remember when any Senator lost an election and there was plausible evidence that a significant reason for that was a vote for or against an S.Ct. Justice nomination?

Finally, Sarcastro is back! Where you been, dude (if I'm making the correct gender assumption)?
5.1.2009 9:36am
ruuffles (mail) (www):

Can anybody remember when any Senator lost an election and there was plausible evidence that a significant reason for that was a vote for or against an S.Ct. Justice nomination?

Clarence Thomas? The Dems controlled the senate but enough Dems voted in favor to confirm him. Weren't some of them primaried out?
5.1.2009 10:08am
Joseph Slater (mail):
Ruuffles:

Do you have any specific examples? And do you think that a Repub. Senator might be "primaried out" for not opposing an Obama nominee aggressively enough? I guess that's possible, although I thought the claim above was more that moderate Dems would suffer if they supported a "liberal" nominee. And I'm skeptical about that.
5.1.2009 10:13am
MarkField (mail):

That's right. Anyone Obama nominates will matter, because Supreme Court justices have enormous power, and serve for many years.


Gee, I guess we can't afford to let liberals have even a single vote on the Court -- it might make a difference in some hypothetical case 20 years from now. Better go nuclear.
5.1.2009 10:53am
Dave N (mail):
The only Senator that I recall being "primaried out" over Justice Thomas' confirmation was Alan Dixon of Illinois, defeated by Carol Mosely-Braun.
5.1.2009 11:21am
AndrewK (mail):
It's interesting to see the news outlets indecisive as to how to characterize Souter.

(1) Souter-as-liberal has the advantage of making it easier for Obama to nominate a liberal and not be overturning things, and has the added advantage of being true as compared with the U.S. population as a whole.

(2) Souter-as-conservative has the advantage of shifting the definition of what "conservative" means, it allows the electoral mandate narrative to enter play, and it would build a greater pizazz when Obama nominates a forward-thinking woman to replace the conservative, stuffy white guy.

I'm just glad the fight is starting earlier rather than later, and with a relatively healthy Souter. A one-two punch of Souter and Ginsberg would be great if they were synchronous and led to a trade-off.

Also, I really wish Obama would appoint a non-academic / non-career judge. It's been too long.
5.1.2009 12:02pm
Magic Dog (mail):
It matters because by replacing Souter with another liberal, Obama makes that one seat liberal for another (probably) 25 years. The ideal pick would be a liberal Hispanic woman. The Republicans will then try, and fail, to block the nomination, but not before earning some more point with Hispanic voters.

Not that Obama's team will recognize the political opportunities in any of this. Oh no. Never could happen! Republicans, doesn't it just suck to be in the minority? Life gets really unfair.
5.1.2009 1:06pm
Magic Dog (mail):
I think Obama will wind up naming at least three, and maybe four, Supreme Court justices in his first term alone. They'll all be replacements for liberals: Ginsberg, Breyer, and Stevens. After that, it would be Kennedy. I think Scalia will stay there until the bitter end.

The best thing Obama can do is find a string of liberals in the 50s.
5.1.2009 1:09pm
mapsguy1955 (mail):
I hope he picks an incredibly liberal justice. I am totally sick of conservatism and the ideas that the people who follow this espouse. I don't want this country to continue to follow the path to one religion. We were founded on a premise of freedom, not a limited freedom that is based on a book.
5.2.2009 8:23am
Conservative Voice:
"...There are particular moments in public affairs, when the people stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow, meditated by the people against themselves until reason, justice, and truth, can regain their authority over the public mind.(Madison 63) While Madison was discussing the Senate above it would equally be stated that the supreme Court is needed to balence against a passionate senate and people putting a senate and president in office due to a passionate or artiful group. We only have the court to hold back the democrats who have no regard for the constitution due to their embracing the ideal of living constitution and international law. we are indeed living in dangerous constitutional times.
5.4.2009 12:13am
ThinBlueLine:
Don't forget that the legislature writes the laws. The people write the constitution. The SOTUS decides what each one means.
5.4.2009 1:45am

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