DailyWrit

I’ve been a little surprised by how scarcely the Supreme Court is being mentioned during this election cycle. Especially as the dust was settling from Heller, I expected more talk about the role our next president may play in determining the trajectory of the Court. Recently, however, I’ve noticed that some smaller conservative blogs have finally begun making some noise about Obama’s promise to appoint Justices who regard the Constitution as a living document, while their liberal counterparts are trying to energize the left by noting that Obama may be in position to make quite a few nominations. But just how many Justices might the next president nominate? A little bit of statistics and some common political sense reveal that it could be quite a few, maybe even enough to rival Roosevelt’s record of eight.

Curious about the numbers, I indexed a list of all the Justices nominated after 1900 and then ran a quick regression modeling the year in which they were appointed against their age at the time of their departure from the Court (resignations not included). The regression yielded the equation y=.136x+66.70, which can be loosely normalized to show that, the later a Justice was nominated, the older he or she will likely be when they leave the Court. This unsurprising equation is graphed below:

More telling than this graph are its implications for the current Court; this model presents a statistically significant answer to the question of how many nominations the next president may expect to make. Assuming that the 2008 president-elect serves a second term, he will likely have the chance to nominate at least four Associate Justices, and probably more pending political climate. Four nominations are slightly above par for eight years: lightweights Bush and Clinton (with two nods apiece) must combine to match the four nominations of both Truman and Nixon, while Eisenhower (5) and Roosevelt (8) outpaced the average. The following table shows the makeup of the current Court, and offers a prediction on when each Justice might leave:

If the president nominates a candidate in 2012, an extended trendline on the regression model indicates that that person would likely be 82 or 83 before leaving the Court:

Justices Breyer and Souter might also use the hypothetical re-election of Barack Obama in 2012 as an opportunity to step aside, presenting the chance to fill two more vacancies. The two other members of the liberal contingent, Justices Stevens and Ginsburg, seem likely to be replaced by the next president, regardless of affiliation. Justice Stevens, meanwhile, is putting my equation to shame, as he will essentially be eleven years “overdue” for departure on the day of the 2008 presidential election. Let us also not forget that, while Chief Justice Roberts has fortunately been in good health recently, he has had some health problems of his own (see Kedar’s post here).

In short, if Obama wins, he could reasonably replace six Justices (all but Thomas, Alito and Roberts) over eight years, loosely redefining the Court as a 6-3 liberal majority.

If McCain wins, he will likely get the chance replace Stevens and Ginsburg, and maybe Scalia if he decides to step aside. Thus, McCain could possibly steer the Court to an 8-1 conservative force.

The most recent RealClearPolitics polling averages for the 2008 Senate races project that the Democrats will pick up between four and seven seats, easily enough to confirm a decidedly liberal Obama nominee, though a few short of the sixty needed for cloture. However, a Senate with 56 or so Democrats might be a tough crowd for McCain to please; it’s certainly fair to say that we would see some familiar fireworks if he places his personal attorney in nomination.

It is also important to remember that the president controls nominations to the appeals courts. Republicans are very frustrated that the Democratic Senate has literally stopped confirming appeals court nominees, hoping that they can keep the current ten vacancies into an Obama administration. Bloomberg reports that these vacancies

would let Obama move quickly to put his stamp on the courts after eight years of nominations by Bush. Six of the 13 U.S. appeals courts are closely divided between Republican and Democratic appointees.

For a little political context, Senatus notes that these same slow-moving Democrats confirmed fifteen appeals-court nominees during the closing months of the Clinton administration.

If you’re curious about my data, e-mail me and I’ll be glad to the .xlsx your way.