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Even If Clinton Wins, Don’t Expect Supreme Court Justices To Start Retiring Immediately

Ruth Bader Ginsburg

In addition to possibly filling the vacancy left by the death of Antonin Scalia, which depends on what the Senate does with the nomination of Merrick Garland before December 31st, it has long been assumed that the next President would have the opportunity to remake the Supreme Court in a way unseen since Richard Nixon, who appointed four Justices to the court during his time in office, and Ronald Reagan, who appointed three and elevated William Rehnquist from Associate Justice to Chief Justice of the United States. The main reason for this, of course, is the fact that there are three Justices above the age of 75, and as of March 2016, two of those will be eighty years old or older. Additionally, in the past Justice Ruth Bader Ginsburg has hinted that she would likely step down at some point if the next President is a Democrat. As Washington Post Supreme Court Robert Barnes reports, though, we shouldn’t expect those resignations to come any time soon:

For those envisioning a line of moving vans at the Supreme Court and a new president immediately reordering life at the marble palace, this small splash of cold water:

Justice Ruth Bader Ginsburg, 83, has already hired the four clerks who will assist her through June 2018.

Above the Law, the legal website that follows the anointing of Supreme Court clerks pretty much the way Variety chronicles casting the latest Steven Spielberg film, reports that several justices, including Ginsburg, have finished the hiring process for the term that begins in October 2017.

That doesn’t mean that nothing will change between now and then, or that the next president won’t have a dramatic impact on the high court.

But as refreshing as it is to see the Supreme Court at the center of the presidential campaign, it is worth remembering that a president’s chance to nominate a justice is one of the least predictable events in American politics.

“Generally, it is God who decides whether presidents get Supreme Court appointments,” says longtime Supreme Court practitioner Walter Dellinger.

It is natural to look at Ginsburg; Justice Anthony M. Kennedy, 80; and Justice Stephen G. Breyer, 78, and conclude that whoever moves into the Oval Office next January has the chance to leave a lasting legacy. The partisan battle to fill the late Justice Antonin Scalia’s seat rages still, and President Obama’s choice of Merrick Garland awaits his fate.

The outcome will tilt the court to the left, or it could leave conservatives in control.

Republican Donald Trump has made that clear, as he’s trying to use the power to appoint justices as a way to try to bring reluctant conservatives in line.

“If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges,” he said at a July 28 rally in Cedar Rapids, Iowa. “Sorry, sorry, sorry — you have no choice.”

In Ginsburg’s case, the fact that she’s hired clerks not only for the term that begins this October, but also the one that begins October of next year seems to be a strong indication that she intends to stay in office until at least that point, but that isn’t entirely a surprise. First of all, Ginsburg is obviously well enough informed of what’s going on outside the Court to know that, even assuming Hillary Clinton wins the election, she is likely to have the first months of her term consumed with seeking the confirmation of her choice to succeed Antonin Scalia, which may or may not end up being Merrick Garland, unless the Senate acts prior to her taking office. The Administration would likely be busy with pushing its early legislative agenda. Adding an additional Supreme Court appointment on top of that would merely contribute to the political circus. Ginsburg’s Clerk hiring indicates that, barring medical necessity, she likely plans to stay in office at least through the term that ends in June 2018 and perhaps longer than that. The oldest person ever to serve on the Supreme Court was Oliver Wendell Holmes Jr., who served until he was 90 years old. If Ginsburg served that long, that would mean she would still be on the bench at the conclusion of the term that begins in October 2022. Additionally, whether she lasts that long or not, though, Ginisburg may decide to stay a bit longer because, even though she is likely near the end of her tenure on the Court she finds herself more relevant than she has ever been given the changes to the make up of the Court created by Justice Scalia’s death:

She would be the senior justice among the five appointed by Democratic presidents, with a liberal majority that hasn’t existed on the Supreme Court for more than 40 years.

That is important for a reason. When conservative Chief Justice John G. Roberts Jr. is in the majority, he either writes the opinion of the court or decides who will. But if not, the prerogative falls to the senior justice on the prevailing side.

If the majority in a case is composed of only the five liberals, that would mean Ginsburg would either write the opinion or decide who gets the job.

As she pointed out in a public appearance this summer, that’s an opportunity that never before has been available to her. It would seem to be one she would not lightly give up by retiring.

Ginsburg and her fellow liberals have been successful in recent terms by sticking together on the issues they consider important and then drawing the needed fifth vote from one of the conservatives. It is almost always Kennedy.

Ginsburg is in apparently good health despite her advanced age, and she clearly seems to enjoy her work, so it’s not entirely surprising that she might decide to stick around longer than some Court observers might suspect. That’s not to say that a President Clinton might not have an opportunity to appoint a Justice or two in a first term, of course. Unlike Justice Ginsburg, neither Justice Breyer nor Justice Kennedy has hired their full compliment of Clerks for the 2017-2018 term, although there is plenty of time for that between now and next October, and given the fact that Justices Thomas and Sotomayor, who most likely aren’t going anywhere any time soon, also have not completed their hiring for the October 2017 term this isn’t necessary a good indicaton of the intentions of either Kennedy or Breyer. Additionally, while the retirement of any Supreme Court Justice is important, it’s worth noting that Ginsburg’s retirement, and Breyer’s, won’t really change the balance of the Court significantly if Hillary Clinton wins the Presidency. That change won’t come until Justice Kennedy retires, and we have no indication of when that might happen.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    There’s no rush. I imagine Hillary’s first appointment to the court – Barack Hussein Obama – would like a few months off before taking on the new gig.

    Highly-rated. Helpful or Unhelpful: Thumb up 29 Thumb down 5

  2. Gustopher says:

    Justice Thomas is also getting up there in years (68), and Alito is 66. And they are all of the age where health problems can suddenly spring up. A good bought of pneumonia spreading through their chambers could pretty much clear the court — I hope they are all getting their vaccines, etc.

    Like or Dislike: Thumb up 2 Thumb down 0

  3. JohnMcC says:

    The results of the present election on the make-up of the Senate will also be determinant.

    Like or Dislike: Thumb up 2 Thumb down 0

  4. Turgid Jacobian says:

    @michael reynolds: Michelle would be so much better.

    Like or Dislike: Thumb up 2 Thumb down 1

  5. Scott F says:

    Scalia’s replacement alone tips the balance (especially considering how much Thomas deferred to his senior partner) and the Republicans would be fools to not seat Garland as soon as Trump’s loss is clear (tomorrow?). The tip to the left with Garland would be modest compared to whoever Clinton should name once she gets to beat McConnell over the head with his “let the election decide” rhetoric.

    @michael reynolds:

    As much as I’d enjoy witnessing the cataclysmic head explosions that would occur on the right were Obama named to SCOTUS, I really hope it doesn’t go that way. Obama is still quite young and I really think he would do worlds of good if he put his post-Presidential focus outside government. Think community organizer on a national scale.

    Like or Dislike: Thumb up 10 Thumb down 1

  6. Mr. Prosser says:

    At this point I’m more interested in cabinet picks but the SCOTUS candidates will be most interesting as time goes on.

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  7. Just 'nutha ig'rant cracker says:

    Republicans would be fools to not…

    And you have current evidence that they aren’t?

    Like or Dislike: Thumb up 5 Thumb down 0

  8. Tyrell says:

    Some of these judges get in there and are unpredictable; they make surprising decisions. Examples are Judge Warren : mominated by Eisenhower as a conservative, he came up with some shocking and poor decisions. And Judge Roberts with his infamous, bizarre health care decision “it is not a fine, it is a tax” . The Supreme Court should not have unchecked power. There should be term limits or recall by petition procedures.

    Like or Dislike: Thumb up 1 Thumb down 15

  9. Davebo says:

    @Tyrell:

    The Supreme Court should not have unchecked power. There should be term limits or recall by petition procedures.

    Good Grief! Why not make it an elected position?

    Like or Dislike: Thumb up 13 Thumb down 1

  10. Steve Verdon says:

    @michael reynolds: OMG…the Republicans would just completely lose their collective minds with such an appointment.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Slugger says:

    Crazy idea of mine: perhaps sitting Justices consider themselves as belonging to a third part of government that is deliberately established in the Constitution as independent of the other two parts and not directly representative of any particular sector. Maybe they don’t think of themselves as the Democrat or Republican member of the court. In addition to the constitutional and historical role of the court, they might see the climate of hyperpartisanship and the hurley-burley of our media as something that needs a counterbalance. They might even, and I know this is extreme, think that their job is to serve our republic rather than one of the parties.

    Like or Dislike: Thumb up 4 Thumb down 1

  12. Tyrell says:

    That is the point I was trying to make. I see too much politics and outside influence from politicians including the president. That was apparent in the infamous government health care decision of a two years ago.

    Like or Dislike: Thumb up 0 Thumb down 6

  13. al-Alameda says:

    @Tyrell:

    That is the point I was trying to make. I see too much politics and outside influence from politicians including the president. That was apparent in the infamous government health care decision of a two years ago.

    So I take it that you favor the recall of Chief Justice John Roberts?

    After all, he was also a lead opinion and vote to legalize unlimited and non-disclosure of campaign contributions, and to eviscerate the Voting Rights Act which allowed Republican legislatures across the country to pass laws suppressing voter turnout among Democratic voter constituencies.

    Like or Dislike: Thumb up 5 Thumb down 0

  14. Thor thormussen says:

    Garland will be the next SCOTUS justice. Either the Senate will confirm him this year, or Hillary will renominate him, and he’ll be confirmed. Here’s why:

    1) He’s a moderate liberal like Hillary.
    2) He’s done the Dems a solid and shouldn’t be discarded.
    3) Most liberals, and the few conservatives who have integrity, know he’s an excellent choice.
    4) McConnell knows the alternative is ‘worse’.
    5) Hillary won’t want to spend precious capital for a marginally-better candidate.
    6) it sets the precedent of approving her nominee, helpful since her later noms will be more liberal.

    Like or Dislike: Thumb up 7 Thumb down 1

  15. Thor thormussen says:

    replacing Scalia with Garland will be fantastic. Replacing Kennedy in a few years with a 45-yro liberal will be ponies and rainbows.

    Like or Dislike: Thumb up 3 Thumb down 1

  16. C. Clavin says:

    Fox News Republican in a bar:

    Ginsburg needs to retire…she’s 83 for gods sake.

    Me:

    Have you ever read any of her opinions…she’s sharp as a tack.

    Fox News Republican:

    No, I haven’t, but I don’t care…she’s 83 for gods sake.

    So beyond being racists…they are ageist, as well.

    Like or Dislike: Thumb up 1 Thumb down 0

  17. stonetools says:

    @Thor thormussen:

    I doubt Garland will be confirmed.
    I think he isn’t going to be confirmed, either before the election or in the lame duck, because to be confirmed he’ll have to get 60 votes to break the inevitable Ted Cruz filibuster. That means that 14 Republicans are going to have to break ranks and defy the crazy Republican base, who have been told that the Republicans can’t let the demon Kenyan Muslim put his secret Marxist judicial pick on the Supreme Court, because if that happens, the Democrats will abolish the Second Amendment, take away everyone’s guns and install a Sharia tyranny. So there won’t be any Garland vote.
    When and if Hillary and a Democratic majority comes in, the filibuster will be nuked and then Clinton will be under pressure to nominate a liberal, especially one from the two blocs (Blacks and Hispanics) who will vote monolithically to put her in. Look for her to pick Watford or Cuellar.

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  18. Slugger says:

    If HRC becomes President, what would get Mr. McConnell to give any nominee a hearing? Surely, he would discover his duty to allow the voters of 2020 to express themselves.
    I envision a time when six more Justices have died, and there is one liberal and one conservative left. The medical charts of these two will be under continuous hack attacks. Eventually, we’ll have no Court while our system awaits a time of country above party.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. Thor thormussen says:

    I wouldn’t mind if she picked either of them, but your scenario is fantastical. It’ll be Garland.

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  20. Tim says:

    @Davebo: I’m not sure if your question is rhetorical, but if not, this is why……….
    While there are tens of reasons the SCOTUS is a life appointment, the biggest reason is that we want our Justices deciding cases based on their ideological perspective. We don’t want Justices rendering their verdict based on financial based on electability. We live in a representative republic. That means we elect people to do our bidding. It’s “Of the people, by the people, for the people”. It’s not “mob rule”. Having Justices appointed for life is a critical check and balance to preserve the integrity of the court.

    Like or Dislike: Thumb up 1 Thumb down 1