Scalia is now 75 as is Kennedy & Ginsburg is 78.Ave retirement age of Supreme Court justices is 80.

[Pirate Smile]

Editorial
The Court and the Next President

Published: October 28, 2011

The Republican presidential hopefuls have been saying alarming things about the federal courts.
Newt Gingrich and Rick Santorum want to abolish the United States Court of Appeals for the Ninth Circuit, which Mr. Gingrich says is “consistently radical” — meaning it upholds civil rights and civil liberties and other things he doesn’t like. Michele Bachmann and Ron Paul say they would forbid the Supreme Court from ruling on same-sex marriage, forgetting perhaps that presidents don’t actually get to do that. Rick Perry has called for term limits for Supreme Court judges, although he hasn’t said whether he meant all of them, or just the liberal ones.

And that is as close as any of the Republicans have come to confronting the real significance of the federal courts in this election — the makeup of the Supreme Court. When Chief Justice John Roberts Jr. began the new Supreme Court term by congratulating Antonin Scalia on his 25th anniversary as a justice, it was a reminder that Justice Scalia is now 75 as is Anthony Kennedy and that Ruth Bader Ginsburg is 78.

Since 80 is the average retirement age of justices over the past generation, whoever is elected president could shape the court for the next generation. That means voters should be alarmed by the fringe ideas they have been hearing from the Republican candidates so far.

The Roberts court is closely divided but also the most conservative since the 1950s. Four of the nine members are very conservative, three of them under 64. If the president is a Republican and has the chance to fill Justice Ginsburg’s seat, that could turn the court decidedly conservative for decades. If President Obama is re-elected and has the chance to fill Justice Scalia’s seat, that could turn the court into a more moderate one.

http://www.nytimes.com/2011/10/29/opinion/the-supreme-court-and-the-next-president.html?hp

[begin_within]

1. Maybe they should retire now...

[JI7]

2. Scalia is also overweight, smokes and drinks a lot and eats a lot of bad food

[Bake]

27. Yeah, but he'll never voluntarily retire.

They'll have to drag him out ... or carry him out.

Bake

[Zoeisright]

3. THIS is why any Democrat who doesn't vote or votes for a third party

should be fucking scared.

[shotten99]

10. [phone]

Ain't that the truth?

[libinnyandia]

13. 2000

That is what's so sad about nade in 2000. He spent his career trying to limit the power of the corporations, runs a third party campaign and helps elect Bush, who appoints 2 justices who make possible the Citizens United decision, greatly increasing corporate power. Nader's supporters said:"don't worry. Roe v Wade is safe."

[Pirate Smile]

14. Exactly. That's why the mention of Nader or when Moore (who pushed this crap against Gore which

helped elect Bush)starts pulling the same garbage against Obama that he used against Gore (which I guess he did on Olbermann this week) is so infuriating. Their actions have sometimes severely damaged the causes they are supposed to be supporting. We notice and don't forget.

[MadMaddie]

19. Bingo! This is what it is about

this is the most important issue of the 2012 election. Wake up Dems....

[Tx4obama]

4. Ginsburg has said in the past that

she will not consider retiring 'at the least' until after a painting she has loaned out returns to her office sometime in 2012.

[ellisonz]

11. At this point...

...they'd probably just hold up any nominee for the heck of it until the election is over.

[MH1]

37. EXACTLY.

The time to retire was no later than end of spring session 2011.

[Tarheel_Dem]

5. I fear, for the first time ever, we may have long term vacancies on the USSC.

Our worthless Congress can't agree on the time of day, let alone court appointments. :-(

[sandyshoes17]

6. This is why we can't have a repub

in the WH the next election. We need to replace them with fair and progressive judges.

[Kennah]

7. Also retention of the Senate

A return of Speaker Pelosi is needed, but for reasons beyond the SCOTUS.

[alp227]

8. After listening to Thom Hartmann for a long time I decided that the USSC undermines our democracy.

Instead of waiting on the USSC to overturn a crummy law instead let's take back our power and shove the onus on congress to pass good legislation. The USSC has committed so many blunder over the years ranging from Dred Scott to Plessy v Ferguson to Bush v Gore Citizens United that it's too dangerous to allow five kings to decipher the Constitution for themselves and determine the fate of America. If Congress passes elephant shit or stalls, vote the bums out.

Meanwhile why can't congress enforce the good behavior clause for USSC justices as written in constitution article 3 section 1? And have a bit more teeth as section 2 allows: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Some may object to my idea because of good USSC cases like the Pentagon Papers, Roe v Wade, Brown v Board, and Lawrence v Texas all granting rights that congressional legislation couldn't have granted.

[Cosmocat]

12. A republican congress ...

would most definitely force the issue if the court was more moderate or even leaned left, or a SCJ pulled the crape Scalia pulls. If one of the liberal judges pulled the shiite the conservative justices pull, they right wing sound machine, including the "liberal press" would be have LONG generated the buzz of impeaching them ...

[dsc]

18. the simple fact is that without SCOTUS we have tyranny of the majority

which for those of us who are minorities is a pretty scary thing. Forget Lawerence, the Issue 2 case out of Colorado is even more profound. Had that case not happened, gays in wide swaths of this country would have literally no rights whatsoever. A law banning gays from voting would pass in most southern states now.

[alp227]

21. It'd be easy to say "change the majority" as in voting out the homophobes

but the problem is that in many state legislative districts that ain't gonna happen. again let's review article 3 section 2: appeals cases before SCOTUS are tried "both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Hmm. is "as to Law and Fact" = the authority to interpret Constitution? I better call into Thom's show and bring that up, as I did back in July and got into a 5 minute or so showdown.

[Major Hogwash]

9. We should impeach Justice Roberts.

For his CU decision that went way out if its way to reach the decision he reached in that case.
Not only did he go way beyond the original scope of that case to get to that outcome, there is no reason to believe that he didn't perjure himself while under oath when being confirmed by the Senate.

[Pirate Smile]

15. Congress is in charge of that. People who want to support causes but then don't want to bother with

working to elect people who believe as they do are yelling at the clouds.

They are ceding that territory to the people who are willing to go to war to get their people electing in local, state and federal positions. The RW does that - and has been doing it for decades. Now we have, potentially, a counter-weight to that in OWS but if they don't focus on getting people elected then that same ground will stay ceded to the RW.

[Major Hogwash]

24. I read what you said 3 times.

But, I need a translater to understand what it means.

[Tx4obama]

17. I think the first one should be Clarence Thomas, just my opinion. n/t

[Major Hogwash]

23. Nah, just Roberts.

Cuz he is the one that is the Chief Justice and he makes a lot of the decisions concerning which cases the Supremes take on.

So, we could affect the outcome more by taking out the Chief Justice and replacing him with a liberal than just going after one of the other judges.

Besides Clerence has been there so long he is almost like a piece of furniture now.
It would be harder to get rid of him.

[former9thward]

30. No he alone makes no decisions whatsoever on cases the SC takes.

It takes four votes of SC Justices to take a case. It matters not how the Chief Justice votes if he is not one of the four. If it gets four then the court hears the case. The Chief Justice assigns who writes the opinion if he is in the majority on a case. That is his main role on the court. He also manages the general SC staff as well as the Judges at the Circuit court and District court level.

[Major Hogwash]

31. I didn't say he alone picks the cases they will review.

He has a lot of influence which cases will be heard because he is the Chief.

[former9thward]

34. Just not true.

The Chief is an administrative position. Justices are independent and are no more influenced by someone who is the Chief than any other Justice. Any book that has been written on the court by former justices indicates this.

[Major Hogwash]

36. I don't think you understand how the system works.

You're talking about theory, I'm talking about reality.
So, there's no use in me trying to explain the difference to you.

[JustABozoOnThisBus]

16. I don't think the liberal judges will be replaced by liberals

And a conservative judge will not be replaced by a liberal.

We get to decide between center-right and far-wacko-right.

I'll hold my nose and vote for the Chicago machine over the Tea Party.

[RFKHumphreyObama]

20. I'll probably be flamed for saying this but

As much as I like and respect Justice Ginsburg and with all due respect to her, she probably should have retired this year. I don't believe that a Republican will win in 2012 but the prospect of that happening is still a possibility and Ginsburg is probably taking a big gamble on continuing in the Court until after the next election

[Major Hogwash]

25. McConnell and the other Republitards would never agree to let a liberal replace her.

That's the problem, and that's been the problem for years now.
Republicans easily pushed 3 of their own conservative types on to the court with very little discussion or few problems.
But, they fought tooth and nail against any more liberals making it on to the court because they like the idea of having a conservative Supreme Court.
If the Democrats would not have had a majority in the Senate when Obama made his choices, they would never have made it on to the court.

To a certain extent, the weak-kneed Democrats in the Senate are willing to go along with a conservative court.

[MFrohike]

22. And?

Even if Obama wins re-election, which I think is likely, his appointees won't be terribly impressive. Don't get me wrong, they'll be better than Scalia or Thomas, though I can at least respect Thomas' ideological consistency, but they'll be the same lackluster justices we've seen for the last 40 years or so. They'll all be Ivy Leaguers and will most likely come from the federal courts. Honestly, it's time for a change.

I'm a bit tired of Ivy Leaguers dominating the Court. All 9, yes all 9, current justices went to either Yale or Harvard. Not one has any experience on the state level in the judiciary (Thomas was an assistant AG in Missouri). This concentration of law schools and experience is myopic. When you consider the great justices of the 20th century, they generally had no federal experience prior to the court. This is true of Holmes, Brandeis, Black (yes, he was a senator), Cardozo, Brennan, and Warren (his greatness is less intellectual but more practical). Warren and Black were not Ivy Leaguers, yet I'd argue that they did quite well on the court. I would not argue the same for any of their current successors.

I think it's time for a change. I'd like to see more appointees from the state courts, who deal with a wider variety of cases, and less appointees from the Ivy League. Honestly, it's not as though lawyers from around the country are really less qualified to decide the cases that come before the court. It might serve to break up some of the absurd groupthink that's sprung up over the years and erode the creeping formalism that's becoming a hallmark of the federal judiciary.

[onenote]

28. focusing on what law school a justice attended is pretty silly

You say you're tired of Ivy Leaguers dominating the court. Maybe you'd be happier with some non-Ivy leaguers, like Rehnquist. Or Robert Bork. Or G. Harold Carswell. The fact is that there are Ivy Leaguers who have served on the Supreme Court with distinction and those that have not. Interestingly, you cite the "great justices" of the 20th Century, you include Hugo Black, who dissented in the Griswold case because he did not believe that there was a constitutional right of privacy, but leave out William O. Douglas, a man that many consider clearly entitled to the label "one of the great justices" of the 20th Century. Douglas, of course, was another Ivy Leaguer (as were most of the other "great justices" that you list).

[great white snark]

29. +1

Damn good post and even better history lesson. Thank you.

[FrenchieCat]

26. It's either Vote Dem or Die.......

Nothing in between!

[Major Hogwash]

32. It's pretty much been that way ever since 1974.

In my opinion.
As soon as the GOP started pushing "figurehead candidates" for President.

That's why the Republicans forced Spiro Agnew to resign in October of 1973.
By then they knew that Nixon was going to have to resign or be impeached.
And they knew that Spiro couldn't get elected President.
So, they forced Spiro out and replaced him with a milquetoast moderate from the Midwest who could be controlled by the party gurus from behind the scenes.
And that was how Jerry Ford became President, a man who had no clue what he was doing.

Reagan was not the one calling the shots while he was in the White House, either.
He was just the "face" that the Republicans wanted to use to present their agenda.

[cherokeeprogressive]

33. And more than one Justice has served past their 90th birthday.

Just sayin'.

[Blasphemer]

35. Scalia will have to have his cold dead fingers pried away from his desk

No way is he retiring. Ginsburg could retire during Obama's (likely) second term. I see the conservatives trying to avoid it. One of them will have to drop dead for a major change to take place. And in a second Obama term, the GOP will likely have Congress so the confirmation process would be epic.