02 May 2009


The surprise announcement by Justice Suter that he is retiring to New Hampshire has tongues wagging inside the Beltway. It’s the beginning of a new era for the Court we are told.

Well, there is no doubt that the President will appoint someone who will be a lot more liberal than would have President McCain, but that individual will be replacing a member of the liberal bloc—Suter, Ginsburg, Stevens, and Breyer. Many of us had presumed that the first vacancies would be Justices Ginsburg and Stevens, she because of her health and he because he is as old as the Rock of Ages (he turned 89 last week). Replacing any of those folks would have left the current balance in place.

The three youngest currently serving Justices are Clarence Thomas, Samuel Alito, and the Chief, the eldest of whom is 60. So, barring some unforeseen departure by Justice Scalia or Justice Kennedy (the swing vote), the short-term make-up of the Court remains pretty much the same no matter who the President appoints.

But time, that rascal, marches on, and the youngster appointed by the President will be on the Court for a long time. Scalia just turned 73 in March and Kennedy hits that mark this Summer. Assuming that Ginsburg and Stevens do go in the next couple of years, the President will probably appoint additional young justices, and if Kennedy and/or Scalia depart, the bevy of new young justices will be re-writing the Constitution—finding previously unsuspected rights in a plethora of penumbrae-- for the next 30 years or more.

The new era is not here, but it is just over the horizon. Those of us who cherish the Founder’s concept of a federal republic in which the powers of the central government were intentionally limited cannot expect to see folks of that philosophy heading to the Court any time soon.


Red_Cleric said...

A reminder about the Supreme Court. There was a California governor appointed to the court by Eisenhower whose name was Earl Warren. He'd been the VP candidate in '48 and had been nominated by the republicans AND democrats for attorney general.

O'Connor, a Regan appointee, was seen going in as a true-blue reganite but ended up being IMHO at the very least a moderating voice if not a general movement toward the right.

It will be interesting to see what happens to those Pres. Obama nominates.

Bill Crawford said...


Funny thing about liberal nominees - they tend to be way to the left. Funny thing about those Republican Nominees - they tended to be a little harder to predict.

Until Bush - who on that regard nailed it.

Mac - nailed it. As bad as it will be it won't break the bank - except that once in awhile Souter would join the conservatives as well.