The 2012 Presidential Election and the Future of the U.S. Supreme Court

1. The 2012 Presidential Election and the Future of the U.S. Supreme Court Artemus Ward Dept. of Political Science Northern Illinois University http://polisci.niu.edu/polisci/faculty/ward/ aeward@niu.edu Batavia Public Library Batavia, IL December 3, 2012

2. Introduction • We will be discussing the succession process on the Supreme Court. Because retirement decisions are partisan, we can expect President Obama to have at least one opportunity and possibly two to nominate new justices. • We will also discuss the specific situations of Justices Ruth Bader Ginsburg, Stephen Breyer, Antonin Scalia, and Anthony Kennedy – the Court’s four oldest members, most likely to depart in the coming years. • Finally, we will mention a few of the names reported to be on the Obama short list of potential nominees.

3. The Roberts Court is often divided 5-4 along party lines with the 5 Republican justices voting together as well as the 4 Democrats. For the liberals to win, they need one of the conservatives to switch sides as happened in the “Obamacare” case National Federation of Independent Business v. Sebelius (2012) where Chief Justice Roberts joined the liberals in upholding the Affordable Care Act under congress’ taxing power.

4. Ideology and the Roberts Court (2005—) Liberal Moderate Conservative L --------------------------------------I-------------------------------------- R Scalia (R) Ginsburg (D) Kennedy (R) Breyer (D) Thomas (R) Sotomayor (D) Roberts (R) Kagan (D) Alito (R)

5. The Vanishing Liberal JusticeIn the modern era, the Court has never been more conservative than it is now.Even the most “liberal” justice – Ginsburg – is more moderate than her predecessors.

6. High Court Succession • 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.

8. Life Expectancy: U.S. White Males v. U.S. Supreme Court Justices, 1940-2010.

9. Ruth Bader Ginsburg (D) • Will turn 80 on March 15. • Fully recovered from colon cancer in 1999. • Underwent surgery on February 5, 2009 for “stage 1” pancreatic cancer. Doctors said that the cancer was caught extremely early and did not spread. While some doctors estimated that her odds of survival after 5 years were better than 50%, the American Cancer Society lists the 5-year 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.” • Most expect her to retire at the end of the Court’s term in June 2015 when she will be the same age as the Court’s first Jewish Justice Louis Brandeis was when he retired. • She said: "I'm going to stay as long as I can do the job. I probably will at least equal him. But you have to take it year by year."

10. Stephen Breyer (D) • The 74-year-old Clinton appointee is a reliable liberal vote but has sided with the conservatives on occasion such as in the Establishment Clause case Van Orden v. Perry (2005) upholding a Ten Commandments display. • Breyer, an athletic bike rider, certainly shows no signs of slowing down. He and his wife recently faced down a machete-wielding intruder in their Caribbean vacation home -- losing about $1,000 in the process -- so his nerves must still be pretty good. • In order not to conflict with Ginsburg’s likely plans, he would need to depart in 2014 or sooner to avoid a double vacancy in 2015 or a vacancy during the 2016 election. • Therefore it is most likely that he will wait until after the next presidential election – which of course could prove a huge mistake should a Republican win.

11. Antonin Scalia (R) • Age 77 on March 11. • The intellectual leader of the Court’s conservative wing, his polarizing personality and strong ideological views have made it difficult, if not impossible, for him to exercise leadership in fostering majorities. • Scalia is the first justice in history to admit publically that Supreme Court justices only depart during favorable presidencies: • “Of course I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25 years, 26 years. Sure, I mean, I shouldn’t have to tell you that. Unless you think I’m a fool.” • It would seem that Scalia will remain on the Court until at least June 2017. He will be 81.

12. Anthony Kennedy (R) • Will turn 77 at the end of the Court’s Term in July. • Conservative vote who is the most likely among the Republican justices to side with the liberals. • He has favored abortion rights, gay rights, and the rights of juveniles in criminal matters. • He will be 81 at the end of the Term in 2017 – the first chance a potential GOP President will have to nominate a new Supreme Court justice.

13. Potential Nominee: Kamala Harris • Because Ginsburg is almost certainly going to depart in the next few years, the Obama administration will select a woman to replace her. Much of the speculation has centered on minority women… • Kamala Harris – Age 47, she was given a prominent speaking role at the 2012 Democratic nomination. She is the obvious choice. • She is the recently elected (2010) Attorney General of California.  • Previously, she was twice elected as the District Attorney for San Francisco (2004-2010); the chief of the unit heading civil code matters in the San Francisco City Attorney’s Office (2000-2004); the head of the career-criminal unit in the San Francisco D.A.’s Office (1998-2000); and Deputy District Attorney for Alameda County (1990-1998).  • Her mother (a breast cancer specialist) is from India and raised her as a single mother; her father (an economics professor at Stanford) is Jamaican-American.  • She graduated from Howard University as an undergraduate and went to U.C. Hastings (San Francisco) for law school.

14. Potential Nominee: Caitlin Halligan • Age 46, she has degrees from Princeton and Georgetown Law, and is a former law clerk to Justice Stephen Breyer. • She has served as New York’s Solicitor General and is currently general counsel for the Manhattan District Attorney. • She has also worked in private practice for a major law firm. • President Obama has nominated her three times to serve on the D.C. Circuit Court of Appeals but the Senate has so-far filibustered her nomination.

15. Potential Nominees • Jacqueline Nguyen - 46, currently a District Court judge in California with a pending nomination to the Ninth Circuit. • Kathryn Ruemmler - 40, White House Counsel. • Mary Murguia - 51, currently serving on the Ninth Circuit Court of Appeals. • Lisa Madigan - 45, Attorney General of Illinois and former state senator.

16. Conclusion • Obama’s victory in the 2012 Presidential election virtually ensures that the Court will remain divided 5-4 in the near future. If the moderate liberal justices depart, they will likely be replaced with new moderate liberals.

17. References • Toobin, Jeffrey. 2007. The Nine: Inside the Secret World of the Supreme Court. New York, NY: Doubleday. • Ward, Artemus. 2003. Deciding to Leave: The Politics of Retirement from the United States Supreme Court. Alban, NY: SUNY Press.