“Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation” -James Madison

Monday, October 17, 2005

Justices and Age

In my post on Idealism, I provided some inaccurate numbers regarding the ages of some Justices. No one caught me on it (sigh, looks like my Instalanche glory days are done for the moment), but I wanted to set the record straight and expand on the thought.

Disregarding Roberts for youth and Miers for not being yet confirmed, the remaining Justices are listed:

Stevens 4/20/20

Age: 85
Age at 2008 election: 88
Age at 2012 election: 92
Age at 2016 election: 96

Ginsburg 3/15/33
Age: 72
Age at 2008 election: 75
Age at 2012 election: 79
Age at 2016 election: 83

Scalia 3/11/36
Age: 69
Age at 2008 election: 72
Age at 2012 election: 76
Age at 2016 election: 80

Kennedy 7/23/36
Age: 69
Age at 2008 election: 72
Age at 2012 election: 76
Age at 2016 election: 80

Breyer 8/15/38
Age: 67
Age at 2008 election: 70
Age at 2012 election: 74
Age at 2016 election: 78

Souter 9/17/39
Age: 66
Age at 2008 election: 69
Age at 2012 election: 73
Age at 2016 election: 77

Thomas 6/23/48
Age: 57
Age at 2008 election: 60
Age at 2012 election: 64
Age at 2016 election: 68

Stevens obviously is the next likely to be replaced, barring injury/illness/untimely event (this assumption holds throughout my post here). He might very well retire during the remainder of this President's term, but almost certainly will be gone by 2012. While it is not unheard of to be serving into one's 90s, odds are that he will be retired or deceased by then.

This seat is the most strongly affected by Congressional elections in 2006 and 2008. Since he could step down as soon as next year, his replacement may benefit or face adversity depending on political winds. If it occurs prior to the 2006 election, the eventual nominee might be another Scalia Jr in the hopes that the Senate Republicans would feel pressure in an election year, as would Red-State Dems. I, and many other conservatives, would welcome this proposition as it would force the issue once and for all as to the response the constituents would expect from the Senate and this President.

Again assuming stepdown prior to 2006 election, if the nominee is another Stealth candidate or is not a base-approved conservative (moderate), it could prove dire to the Republicans as a whole. The uproar over Miers (fair or not) is an indication of the base's displeasure with decidedly non-conservative policies, votes, and actions on the part of the administration and elected representatives in the House and Senate. While losing seats in one or both houses and possibly the Presidency, this might potentially galvanize conservatives and lead to more purification of principles in the form of new candidates. As a step back, it could be a long-term positive in consolidating the "true conservative" principles with respect to party.

If he holds on until after the 2008 elections, the board is reset in terms of the nominating President. While I would trust President Rice or President Brownback to hold firm to strong conservative justices, I cannot say the same for President Giuliani or President McCain. Of course President Clinton II will most certainly be working the other side. Since the potential presidents of 2008 are largely not conservative, it will be up to the Senate to enforce discipline in terms of rejecting non-conservative nominees (assuming the current politicization of the Court and confirmation process continues), and that is exactly why 2006 and 2008 Senate races are the most important to the future makeup of the Court. Given the current Senate and its decidedly non-disciplinary approach, we have got to ensure as best we can that the squishy RINOs are tossed out and replaced with solid conservatives. If the current President does not get to replace Stevens, the next one surely will.

Ginsburg is the next most likely to leave. While I have no substantive information, I have heard that she has health problems that are beginning to become more prominent. This is admittedly second- or third-hand, so any corrections or updates are certainly welcome. At the time of the 2008 elections she will be 75; not ancient by any means but also an age when many people decided to enjoy their remaining life. This is magnified in the case of health issues. By the 2012 elections she will be 79, by 2016 she will be 83. There is a remote possibility of her retiring this president's term, but if she steps down it would most likely be during the term of a 2008 or 2012 president, especially if a Dem is in office during one or both of those terms.

Scalia, Kennedy, Breyer, and Souter all form the next tier of possibility. They are all within 3 years of each other and after disregarding health issues (about which I know nothing of any of them) and accident/untimeliness, would all have pretty equal chances of being replaced. Conservatives can take heart that 3 of the 4 are NOT Scalia, although he is technically the eldest of the bunch by 4 months over Kennedy. Most likely they make it into the 2016 president's term, at which they are all over 75. This group would be most affected by the 2016/2020 elections in terms of using politics as a deciding factor in retirement and/or replacement nomination.

Thomas, thankfully, is the youngest (not counting Roberts), so we can look forward to having his voice on our Court long after the others have moved on.

This post obviously is an outgrowth of the Miers debate. While I originally supported her nomination out of trust for the President and his calculation of Senate confirmation politics, this support is checked by the sorts of underwhelming information about her found on so many other sites. Further erosion is based in the administration's lukewarm-at-best public praise of Ms. Miers. Attacking critics, utilizing "1st woman to..." and "Glass ceiling" arguments, and other not-particularly-persuasive statements have made it difficult to support the nominee enthusiastically. It is possible that the President is trying not to give too much ammo to the opposition Dems, but it is affecting Republican support in that they can't defend what they don't know. My original post on Misunderstimation explored the ideas of managing a difficult Senate and the idea of a bigger picture. Sadly, I am no longer sure I hold that position, and have begun to consider the possibility of Misoverestimation. I do not believe she is a Crony; I still think the President believes that she is what we and he want -- a conservative originalist. However, the end-run, lack of conlaw experience, weird defense, and general appearance of working from weakness is undercutting the process. In addition, conservatives are supposed to be against the outcome-based political machinations where the Court is concerned, and this nomination is beginning to look just that way.

In addition I am also considering the idea that this might in fact be the time to try the Janice Rogers Brown or Michael Luttig route -- know that there's a fight coming, know that part of the Senate (R) votes will run over to the opposition, know that the Dems will 'filibuster', know that you may or may not have the votes to break it, and that your nominee might not get out of committee or voted down in the Senate proper. However, in each of these instances, it will be possible to take names and let the constituents of each state represented thereby to know exactly which (R) or Red-State (D) allowed the President's Very Conservative Choice to fail when there is a majority of (R) votes listed on the Senate register. 2006 is not far away, and it might do our side some good to cull the herd.


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