November 24, 2008

Supreme Court in the Balance

The Supreme Court is bound to change over the next administration. The conservative justices, Roberts, Alito, Thomas and Scalia are aged 53, 58, 60 and 72 respectively. They are, God willing, likely to remain on the bench through an Obama term. The liberal justices Stevens, Ginsberg, Souter and Breyer are older - 88, 75, 69 and 70 and at least one appointment and as many as 3 replacements are possible. The swing vote, Justice Kennedy is also aged 72.

My suspicion is that Ginsberg may retire, and that 2 nominations under Obama's watch are possible. Stevens is all but guaranteed. Scalia, Kennedy, Souter and Breyer are all possibilities as well.

Replacing Stevens and Ginsburg with other liberal justices does nothing to alter the immediate face of the court. There will still be a 4 to 4 and 1 swing vote situation. And if that's all that faces conservatives before 2012, we should consider ourselves lucky. The worst case is that they will be replaced by much younger justices, thus bringing youth and extending tenure to the liberal cause. Based on the names being bandied about by the partisans at Salon, this is likely to be the case. But there are worries to be had. Scalia and Kennedy in particular, if replaced by Obama would represent a shift in the balance of the court. Given that Stevens will set the tone for replacements, it might impact the retirement options of the other justices.

In the period between 2012 and 2016, the existing conservative justices would be aged 57-61, 62-66, 64-68 and 76-80 respectively. The liberal justices assuming Stevens is replaced by someone say 50 by next year, would be aged 53-57, 79-83, 73-77, and 74-78, with Kennedy aged 76-80.

Best case scenario is for Conservatives to win in 2012 and hold in 2016. That guarantees them the opportunity to pick off 1, maybe even 2 liberal justices and swing the balance of power back. losing 2012, presents a darker scenario.

I'm just saying.

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