It may seem a little early — OK, it is a little early — to consider motivating factors in the 2008 presidential race, but Tom Goldstein emailed me with a heads-up on a terrific piece he wrote about the election and the future balance of the Supreme Court.
While acknowledging upfront that justices’ retirements are unpredictable, Goldstein makes a compelling case that the next president will likely be in a position to name at least two, possibly three, members of the high court.
The next President similarly will have two appointments immediately (replacing Stevens and Souter), and there also is a very substantial prospect that a Democrat would quickly be in a position to appoint a third (replacing Ginsburg). In fact, if a Democrat wins, there will be something of a race for the exits.
Justice Stevens is 87. He seems in great health, but it is not reasonable to expect him to extend his tenure to age 93 (i.e., past the 2012 elections). Justice Souter is only 67. But he seems the most enthusiastic about leaving; he never embraced the job (or Washington, DC) as a lifetime commitment. Justice Ginsburg is 74. Many people say that she is in poor health, but I just don’t see that; it is easy to mistake her somewhat timid physical demeanor for broader health problems and she is certainly intellectually in top form. Nonetheless, one does get the strong sense that, having served 16 years by the time the next President takes office and facing the prospect of serving in the current environment until she reaches 80, Justice Ginsburg would very seriously consider allowing a Democratic President to nominate a replacement to be confirmed by a Democratic Senate.
Even a Justice on the left who is planning on leaving and would prefer to have his or her successor appointed by a Democrat will likely retire relatively early in a Republican presidency. The Senate will probably remain in Democratic hands in 2009, limiting the prospect of a very conservative replacement. So, I would be very surprised if Justices Stevens or Souter would stay. But the dilemma of leaving under a Republican President would be substantial for Justice Ginsburg, and I expect she would stay so long as her health permitted. […]
In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades â i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high.
As Goldstein sees it, a Democratic victory in 2008 would help maintain at least the status quo on the Supreme Court for quite a while. A Republican victory would mean a rather dramatic opportunity to reshape American law.
Take a look; it’s a persuasive argument.
