Wednesday, March 16, 2016

Could Judge Garland's Age Be An Advantage?

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.)


Joe said...

I think a term limit of twenty years or so would be a reasonable idea, so him "only" being on the Court that length of time is not really a negative for me. Souter, e.g., retired around that point. He had a good run.

And, unless Garland has some sort of health issue, he easily can serve into his late 80s, which would mean at least twenty-five years. Plus, as you say, it means he has experience (some tossed out there can use more, e.g., Judge Jane Kelly) and makes him more confirmable. The "realistic" opinion is that is a lost cause, but guess I'm a wide-eye optimist on that front, and don't quite think so. Anyways, sometimes it's good to give it your best shot & he's not a bad compromise pick there for someone who believes in actually doing things in government like sane people.

Unknown said...

The Supreme Court should have more than 9 justices and there should be a term limit of at most 30 years. The WHYS are too extensive for this comment.
Regarding this nominee, I believe Obama nominated Garland knowing that he will not be confirmed. I believe that he has done his job, i.e., picked a nominee and by doing so, get the Republican senators in a tizzy for the upcoming election. Hillary wins the presidential election and she gets to pick the replacement for Scalia.
What IF she nominates Obama? He will then be the second U.S. President to sit on the Supreme Court after William Howard Taft! Will the senators then reject Obama from serving on the U.S. Supreme Court?

Shag from Brookline said...

Would Obama want to be a Justice on the Court? Think of his political career before 2008, serving in the Illinois legislature a few years and then the US. Senate for two short years. I think Obama has more important goals at this time of his life than being one of nine. Keep in mind some of the tasks required on the Court for the newest Justice. And might Obama be subjected to jibes from Justices Sotomayor and Kagan while attending to these tasks?

Shag from Brookline said...

Assuming the Senate does not approve Garland before Obama's term ends on Jan. 20, 2017. Does the nomination remain in place for the new Senate? Is the nomination automatically withdrawn or must the new President take action? (Of course, Garland could himself withdraw.)

David Ricardo said...

Republicans have clearly decided that they will not confirm the judge unless they lose the November election in that case they will confirm him in order to prevent President Clinton from nominating someone even more liberal

Justin said...

I don't think it is an advantage, and I think it outweighed by other factors, but there is one "benefit" of an older appointee. If you accept the following 3 premises:

a - Democrats are likely to win the Presidency more often than the GOP for the reliable future
b - When a seat opens is not entirely random, so that a Democratic nominee is more likely to retire during a Democratic presidency than would be completely random, and
c - That the liberalness of liberal justices are is growing over time

Then appointing a Justice Garland now will mean we'll get a future Justice Liu faster than we would if we appointed a Justice Srinivasin.

But I maintain the position on my own blog, which is this should be treated like a settlement offer, a reasonable one, and thus subject to withdrawal before "judgment":

Joe said...

ah a "dubitante" opinion

(FN4 refers to another blog)

It's a reasonable idea.

I think it's fairly possible that Obama would think, especially with a Republican Senate and current more strict rules that a middle of the road compromise pick would be necessary for a Scalia. A young Thomas (I think 50 might be seen as a cut-off these days) for Thurgood Marshall move these days might be a hard slog. Sotomayor/Kagan were basically even trades and neither a sort of Pamela Karlan or (at the time; his service as a state judge should help) Goodwin Liu type move.

Anyway, thirty years is pretty high as a term limit -- sort of what's the point. As to more than nine, nine works for me though retired justices or perhaps an appellate judge (district court judges sometimes fill in a level higher) might fill in at times.

Justin said...

PS - Merrick Garland thinks you're kind of rude.

Unknown said...

I totally agree with Joe!!

Helen@TEFL Certified

Joe said...

I feel special. Spambot agreed with me!