by Michael Dorf
At least according to my Twitter feed, Democrats who are disappointed by President Obama's nomination of Judge Merrick Garland to fill the vacant seat on the Supreme Court are concerned that Obama blew a chance to move the Court substantially to the left or at least to mobilize key constituencies in November. After all, Judge Garland is a moderate, and he belongs to no key minority group. I want to put aside considerations of ideology and identity politics to focus here on another concern that some left/liberal critics of the nomination have (at least tentatively) voiced: They worry that Garland is, to put it bluntly, old.
Judge Garland is 63. Of all the Justices nominated to the Court since the Nixon Administration, only Lewis Powell was older when he joined the SCOTUS. Presidents have taken to appointing substantially younger justcies -- Clarence Thomas was a mere 43 when he took his seat on the Court, and John Roberts was 50 -- for the obvious reason that, actuarially speaking, a younger appointee will serve longer. Although justices sometimes try to time their retirements to coincide with the ideological druthers of the presidents who will nominate their successors, this is not always possible, either because the other party holds the White House for too long or because, as in Justice Scalia's case, death comes suddenly. Given these stark realities, the longer the interval between vacancies of seats occupied by nominees of presidents of each party, the more likely that justices who are broadly speaking sympatico with that party's leanings will hold a majority of the Court.
Nonetheless, I want to push back a little bit against the younger-is-necessarily-better idea in a few ways.
First, as the proverb says, with age comes wisdom. Not always, of course, but there is a reason why traditional societies have typically looked to elders for guidance--and it's not because they are the strongest physically. The accumulation of experience frequently brings good judgment. A few mental skills decline after early adulthood. High-end mathematics is a well-known example. But judgment is generally thought to improve over time, at least prior to the decline associated with senility.
Second, there is something refreshing about the trend of recent appointments of long-serving federal judges--in particular Justices Alito and Sotomayor. The nomination of Judge Garland fits an emerging pattern that contradicts what was becoming the conventional wisdom--namely, that a president would do best by nominating someone without an extensive "paper trail." Where there is a paper trail that can appeal to a majority of Senators, that counts as a plus. But of course, other things being equal, the length of a paper trail will correlate with age.
Third, the fact that Judge Garland is 63 rather than 43 makes him more confirmable. No doubt President Obama selected Garland chiefly because of his stellar credentials and the fact that he is a well-liked moderate. (I share the view that he is extremely well qualified.) These qualities put pressure on Senate Republicans up for re-election to abandon their pledge not to consider any Obama nominee. It probably won't work, but you never know. Just as Democrats may be willing to take the certainty of Garland now rather than the risk of a nominee by a Republican president next year, so Republicans may be willing to take the certainty of Garland now rather than the risk of a younger, more liberal nominee from a different Democratic president and maybe a Democratic Senate next year.
Fourth and finally, I list something that is not exactly a plus so much as a not-minus. Maybe this is just my own advancing age, but 63 is not that old. According to the Social Security Administration's actuarial forecasts, we can reasonably expect Judge Garland to live another twenty years--even assuming he is in average health for a man of 63. Given the correlation of longevity with socioeconomic status and lifestyle, it is not difficult to imagine Judge Garland living longer and serving through another six or even seven presidential terms before retiring. But let's assume that he retires after only 20 years. By that time the demographics of the country will have tilted decidedly in the direction of the constituencies that elect Democrats. That doesn't mean an unbroken string of Democrats in the White House, of course. We can assume that the Republican Party or whatever replaces it if Donald Trump breaks it will change to become more competitive--but that too should give liberals comfort: Whatever the nominal party affiliation of the president who names a successor to Justice Garland following his imagined retirment in 2036, that president will name someone acceptable to current liberals. (And if not, I'll apologize in 20 years.)