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Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Rumors of Retirements
November 11, 2008 8:12 AM
The conventional wisdom around Washington for the past year or so is that Barack Obama, if elected president, would nominate at least one or two justices to the Supreme Court.
After all, John Paul Stevens is 88; Ruth Bader Ginsburg is 75. And then there's the eccentric David Souter, who's only 69, but who complains to friends that he hates Washington and just wants to flee home to New Hampshire, where he can wrap himself in scratchy blankets and sit by the fire reading books in his unheated cabin.
But hold on.
Stevens is showing no signs of slowing down. He's as active as ever from the bench, peppering lawyers with astute questions. His colleagues say that in private, he's also as sharp as ever.
Same for Ginsburg, a cancer survivor who stirred retirement talk a couple terms ago when she fell asleep a time or two during an oral argument. When people see her for the first time, they exclaim how she's so petite and frail in her appearance. But she's always been petite and frail in her appearance.
She's focused and engaged during the arguments, asking questions and, as she did yesterday, giving assists to struggling lawyers who are withering under cross-examinations from more conservative justices.
The ever-astute Tony Mauro, who covers the Court for the American Lawyer, has a terrific piece questioning the CW on retirements. Tony gives two examples of Justice Ginsburg shooting down rumors she will be stepping down in an Obama administration. According to Tony's sources (and Tony has very good sources), Ginsburg had this to say at a recent law clerk reunion:
"If anyone asks you, 'when is she retiring,' tell them I have a great role model in Justice Stevens, who is going strong at age 88."
She emphasized her point the week before the election, Tony writes, at the end of a speech at Columbia University.
Ginsburg referred to Justice Louis Brandeis, saying he "became a justice at age 60, as I did. He remained on the bench until age 83. My hope and expectation is to hold my office at least that long."
As Tony points out, Ginsburg would have to stay on the Court until 2016 to realize her hopes.
And Souter, according to some of his colleagues, loves the work and may just be complaining to friends that it's Washington he finds tiresome, as part of his "I'm an eccentric New Englander" persona. His aversion to Washington is not that unusual (just talk to my Chicagoan husband), and it's probably something he can deal with.
Souter leaves DC the second the Court adjourns for the summer to go home (literally, the second. He even has skipped the end-of-term lunch with his colleagues). And he doesn't return until the very first conference in September.
Of course, as we all know, justices can surprise. Liberals don't always retire during Democratic administrations. Sometimes, they step down in Republican ones, and vice versa for their conservative colleagues.
Tony mentions Justice Thurgood Marshall, who was expected to retire in President Carter's term. Instead, Marshall rode it out. Carter didn't get a single nomination, and the liberal lions William Brennan and Marshall both retired in the next administration of Republican George H.W. Bush.
Bush replaced Brennan with Souter, who was believed to be a solid conservative. The next year, he replaced Marshall with Justice Clarence Thomas, achieving real change with his second nomination and, from conservatives' point of view, squandering the first.
A more recent example is Justice Sandra Day O'Connor, who dropped a bombshell with her retirement in 2005, when everyone expected the late Chief Justice William Rehnquist to retire. No one in her inner circle saw that coming, not even her family.
So before Obama's legal team starts looking for a replacement for Stevens (as Bush did, prematurely, for Rehnquist), perhaps it's best to be patient and hope for a second term. He could expand the field of prospects by nominating Supreme Court-quality judges to the appeals court.
After all, Obama is going to face a problem similar to George W. Bush, in that he's looking at eight years of federal appeals court judges nominated by the opposing party. Those Clinton nominees are aging.
And then he could nominate one of his judges to the Supreme Court. It's been done before. In 2005, Bush tapped one of his appellate court nominees to the high court, John G. Roberts.
And Bush likely would have tapped a second in Miguel Estrada. But Democrats -- knowing full well Estrada was likely to be nominated next to the Supreme Court -- decided to head off that fight and block his nomination to the D.C. Circuit.
This much is clear: The real battle in the next year or so is more likely to be over those appellate court nominations. But whether Republicans will filibuster like the Democrats did is anyone's guess -- though mine is that it's highly doubtful.
November 11, 2008 | Permalink | User Comments (23)
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I never thought of that whole business about the fact that Obama is dealing with eight years of Bush appointments to the Courts fo Appeals, and that might offer someone like myself reason for hope. Not that he'll appoint any of them to the Supreme Court, but he won't have the luxury of appointing liberal justices with long paper trails, since most of the ones with the long paper trails are Bush appointments. Thus, this increases the chances of a David Souter in reverse deal, which in my mind would be one of the greatest pieces of poetic justice ever. We're one vote away from getting the hell rid of the abomination that is Roe v. Wade, and I'd be rolling on the floor laughing if Obama appoints the judge who turns out to be the vote that we need. Given this set of circumstances, that's not impossible.
Posted by: Alex | Nov 22, 2008 9:47:16 PM
Bush did many things wrong, but the two people he appointed to the supreme court are among the best in history.
History will judge whether he was the worst President in history. I suspect history with the benefit of hindsight will view him in a far more favorable light than some of us do now.
Posted by: mfree | Feb 5, 2009 2:07:04 PM
Conservatives need not worry. In the name of bipartisanship, President Obama will surely nominate someone in the mold of Scalia and Thomas. Just recall recent events.
Posted by: agnostic | Feb 5, 2009 11:09:11 PM
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