I believe that the next President will feel an extraordinary pressure... to name another woman to the Court, likely in a first appointment. In addition, I think that the next nominee will be non-white, and most likely Hispanic....You have to go back to this post to see why Goldstein is predicting the Souter to go first, followed by Stevens and then Ginsburg:
... I applied a birth date cutoff of 1952. Any nominee born earlier than that would be fifty-seven or older by the time of a post-election appointment in 2009....
The age cutoff presents a particularly difficult dilemma for a Democratic President. In 2009, it will have been more than eight years since a Democratic administration had the opportunity to groom candidates by placing them on the bench or in high-level positions in the Department of Justice....
I did not attempt to study many other important factors. For example, beyond reputation, I do not know much about these candidates in terms of their suitability for the job with respect to intellect and judicial philosophy....
Justice Stevens is 87. He seems in great health, but it is not reasonable to expect him to extend his tenure to age 93 (i.e., past the 2012 elections). Justice Souter is only 67. But he seems the most enthusiastic about leaving; he never embraced the job (or Washington, DC) as a lifetime commitment. Justice Ginsburg is 74. Many people say that she is in poor health, but I just don’t see that; it is easy to mistake her somewhat timid physical demeanor for broader health problems and she is certainly intellectually in top form. Nonetheless, one does get the strong sense that, having served 16 years by the time the next President takes office and facing the prospect of serving in the current environment until she reaches 80, Justice Ginsburg would very seriously consider allowing a Democratic President to nominate a replacement to be confirmed by a Democratic Senate.He thinks Stevens and Souter will leave even it a Republican wins (but Ginsburg will hang on if she can).
The consequences of two or three moderate-to-liberal seats turning over will be either minor (under a Democrat) or potentially massive (under a Republican)....
[I]f a Democratic President wins in 2008, the current conservative-leaning détente on the Court is likely to be enshrined for the indefinite future. Imagine if in 2009 Justices Stevens, Souter, and Ginsburg were replaced by Judge Garland (then age 57), former Solicitor General Seth Waxman (58), and Dean Elena Kagan (49); they would join Justice Breyer (71). On the right, you would have Scalia (73); Thomas (60); Alito (59); Roberts (54). And Kennedy in the center (for this Court) would be 73.
In that scenario, the potential range of movement in the Court’s jurisprudence would narrow dramatically. Only three Justices – one from the left, one from the right, and one in the center – would be at an age at which they would even be thinking of retiring. The other six Justices would be expected to serve at least 10 (and more likely 15 or 20) years.
In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades – i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high.
UPDATE: Tom Goldstein comments on the commentary and notes:
[T]hough the post dealt with Democratic nominees – the commentary was almost uniformly from the conservative blogosphere. There was nothing from sites on the left like Daily Kos, Talkingpointsmemo, and Balkinization. My point isn’t that the post was particularly insightful, but instead that interest in the subject of judicial nominees seems focused on the ideological right. No doubt there is something of an echo-chamber effect. The kind notes by Orin on Volokh and my law partner Paul Mirengoff on Powerline were likely noticed by the authors of other conservative sites. But the one-sided response to the post reinforces the commonly held view that conservatives recognize the importance of judicial nominations much more than do liberals.Does this mean liberals are not up-to-speed or are they just demoralized?
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