Elena Kagan, Sonia Sotomayor,
and the Future of the U.S. Supreme Court
NIU Notables Lecture
Northern Illinois University
October 19, 2010
Artemus Ward
Dept. of Political Science
Northern Illinois University
Introduction
• We will be discussing the succession process on the Supreme Court.
Because retirement decisions are partisan, we have seen President Obama
nominate two new justices. Will there be more?
• We will also discuss the specific situations of Justices Ruth Bader Ginsburg
and Stephen Breyer – the Court’s two oldest liberal members.
• Finally, we will mention a few of the names that might be on the Obama
short list of potential nominees should another vacancy arise.
Presidential Nomination Strategies
• Though Presidents have drawn
from the Senate, Justice dept,
and the states, the recent trend
has been to select a federal
lower court judge (usually
appeals court) with the same
ideology as the President.
• Three aspects of the “perfect”
nominee:
– shares president’s ideology
– identifies with party supporters
(base)
– symbolic recognition to a
significant group of voters such as
women or minorities (this can also
be an obscuring tactic to mask an
ideologically-driven selection).
The
Senate
•
•
The Constitution gives the Senate the power to “advise” and “consent.” What does this
mean?
The Senate has rejected 20% of the president’s nominees and fully 1/3 have failed. Yet
Kagan was confirmed 63-37 and Sotomayor was confirmed 68-31. What denotes success?
– when president and senate are of the same party there is generally greater success.
– when current political regime is at its apex, there is greater success.
– timing is everything – election-year nominees will fail as the nomination will be a major
campaign issue.
– the “legal veneer” is often used to attack a political opponent who has been nominated highlighting a lack of experience or unethical behavior, when partisanship is the main
reason. This was a major factor in the withdrawal of Harriet Miers who was attacked by
conservatives within her own party for a lack of experience when the real reason was
that she was perceived as too moderate. Similarly, the sexual harassment allegations
against conservative Clarence Thomas were used by liberals in an attempt to scuttle his
appointment.
The People
• Since the 1930s, the
American Bar Association
has given its opinion on the
“qualifications” of a
president’s nominee,
though it doesn’t hold much
weight with the Senate.
• Other interest groups have
had more influence. For
example, liberal groups ran
TV ads against
conservative nominee
Robert Bork in 1987, and
were successful in helping
to sink his nomination.
Robert Bork’s nomination was defeated in the Senate 42-58.
A Partisan Court?
• Given that the appointment process is
inherently political, should we expect
justices to shed their political attitudes and
interpret the constitution neutrally?
• Political scientists have studied the votes
of Supreme Court justices to determine
whether or not justices vote in a
consistently liberal or conservative
direction.
The
Vanishing
Liberal
Justice
In the modern
era, the Court
has never been
more
conservative
than it is now.
Even the
“liberal”
justices are
more moderate
than their
predecessors.
Ideology and the Roberts Court (2005—)
Liberal
Moderate
Conservative
L --------------------------------------I-------------------------------------- R
Brennan (D)
Stevens (R)
Rehnquist (R)
O’Connor (R)
Marshall (D) Souter (R)
Blackmun (R)
Kennedy (R)
Ginsburg (D)
Scalia (R)
Breyer (D)
Sotomayor (D)
Kagan (D)
Thomas (R)
Roberts (R)
Alito (R)
High Court Succession
Table 2. Institutional Constraints on Partisan Departures in the
U.S. Supreme Court.
• Court Term - Justices retire when the Court is in recess. Often at the close
of a Term in late June or early July, on the last day when opinions are read
from the bench, the Chief Justice announces the retirement of the justice.
This allows the Court to have a full contingent of members during the Term
and, ideally, a new justice to be appointed before the new Term begins the
following October.
• Presidential Campaign - Justices do not retire in presidential election years.
Because the appointment process can be highly controversial, justices do not
want to add controversy by making a specific nomination a campaign issue.
• "Rule of Eight” - Two or more justices never retire at the same time. This
allows the Court to have the largest number of active justices, currently eight,
in case an appointment is not made before a new Term begins.
Retirement Eligibility and the Roberts Court.
Date of Birth
Date of Initial
Service on Federal
Courts
Date Retirement
Eligible under
Rule of 80
Ruth Bader Ginsburg (D)
March 15, 1933
June 30, 1980
March 15, 1998
Antonin Scalia (R)
March 11, 1936
August 17, 1982
March 11, 2001
July 23, 1936
May 30, 1975
July 23, 2001
August 15, 1938
December 10, 1980
August 15, 2003
June 28, 1948
March 12, 1990
June 28, 2013
April 1, 1950
April 27, 1990
April 1, 2015
June 25, 1954
August 12, 1992
June 25, 2019
John Roberts (R)
January 27, 1955
May 8, 2003
January 27, 2020
Elena Kagan (D)
April 28, 1960
August 7, 2010
August 7, 2025
Justice & Party ID
Anthony Kennedy (R)
Stephen Breyer (D)
Clarence Thomas (R)
Samuel Alito (R)
Sonia Sotomayor (D)
All justices began their federal judicial service on the Courts of Appeals except Kagan.
All retirement eligible dates are based on the current Rule of 80: age 65 plus 15 years federal judicial
service. 28 U.S.C. 371 (C).
Life Expectancy:
U.S. White Males v. U.S. Supreme Court Justices,
1940-2010.
90
80
70
60
50
U.S. White Males
U.S. Supreme Court
40
30
20
10
0
1940
1960
1980
1990
2000
2010
Ruth Bader Ginsburg (D)
•
•
•
•
•
•
•
•
Turned 77 on March 15th.
Votes with the Court’s liberals in divided cases.
Fully recovered from colon cancer in 1999.
Underwent surgery on February 5, 2009 for
“stage 1” pancreatic cancer. Doctors said that the
cancer has not spread.
While some doctors estimate that her odds of
survival after 5 years are better than 50%, the
American Cancer Society lists the 5-years survival
odds for stage-1 pancreatic cancer at 21-37%.
The median survival rate is 2 years.
On February 21, 2009, U.S. Senator Jim Bunning
(R-KY) made headlines when he suggested that
Ginsburg would be dead in nine months: “Even
though she was operated on, usually, nine
months is the longest that anybody would live
after (being diagnosed) with pancreatic cancer.”
Her husband Martin passed away on June 27,
2010 at age 78.
Should Ginsburg retire in 2011 before the 2012
presidential election?
Stephen Breyer (D)
• Turned 73 on August 15, 2010.
• Reliable moderate-liberal vote.
• Published two books: Active
Liberty: Interpreting Our Democratic
Constitution (2005) and Making
Our Democracy Work: A Judge’s
View (2010).
• If Obama wins reelection will
Breyer depart in 2013, 2014, or
2015? He will “only” be 77 in
2015.
Potential Obama Nominees
• Jennifer Granholm – Born in 1959, Governor of
Michigan and former Michigan Attorney General.
• Deval Patrick – Born in 1956, first African-American
Governor of Massachusetts, former Assistant Attorney
General for Civil Rights in the Clinton Administration,
close friend of Obama.
• Leah Ward Sears – Born in 1955, Former Chief Justice,
Georgia Supreme Court.
• Martha Minow – Born in 1954, Dean Harvard Law
School.
• Sidney Thomas – Born in 1953, Montana federal
appeals court judge.
• Merrick Garland – Born in 1953, Federal appeals court
judge, Washington DC.
• Diane Wood – Born in 1950, currently a judge on the
U.S. Court of Appeals for the 7th Circuit.
Conclusion
• Obama’s victory in the 2008 Presidential election virtually ensured
that the Court would remain divided as moderate liberal justices
departed and were replaced with new moderate liberals.
• Will Ginsburg and Breyer also depart during an Obama presidency?