Vacant Justice

Vacant Justice October 25, 2008

When it comes to Supreme Court vacancies and abortion, there are two things to remember. First, not all vacancies are created equal. There are currently five clear pro-Roe votes on the Supreme Court (Stevens, Breyer, Ginsburg, Souter, and Kennedy), two clear anti-Roe votes (Scalia and Thomas), and two votes that are probably but not definitively anti-Roe (Roberts and Alito). To get an anti-Roe majority on the Court, it’s not sufficient for a President to appoint an anti-Roe justice. It must also be the case that the justice this anti-Roe justice is replacing is one of the five pro-Roe justices currently on the Court. So, for example, if Justice Scalia were to step down and the President were to appoint Judge Pryor (who is about as close to a certain anti-Roe vote as one could imagine) to replace him, this wouldn’t change the vote should a case reach the Supreme Court in which Roe was challenged. That doesn’t mean that a Supreme Court vacancy isn’t important if the justice being replaced is anti-Roe. Should a pro-Roe justice be appointed to replace an anti-Roe justice, this would make achieving an anti-Roe majority on the Court that much more difficult. Likewise, if a pro-Roe justice were to be replaced by another pro-Roe justice, this wouldn’t necessarily change the vote in any case involving Roe, but it would take that seat “off the table” in terms of building an anti-Roe majority for the next 30 years or so until that new pro-Roe justice got ready to retire.

The other important thing to note about Supreme Court vacancies is that they are not random events. A vacancy can occur because a given justice dies or is too ill to continue his service, or it can occur because the justice in question decides to retire. And whether a justice decides to retire at any given point will depend, in part, on whether he thinks he will be replaced on the Court by someone who broadly shares his views on the law. The more liberal a justice is, the less likely he will be to retire during a Republican administration (if he can help it). The more conservative a justice is, the less likely he will be to retire during a Democratic administration.

Keeping these two points in mind, what are the likely vacancies during an Obama versus a McCain administration?

If Obama is President, he will almost certainly get to pick Justice Steven’s replacement. Stevens, while currently in good health, is 88 years old. He is also one of the most liberal members of the Court. If Obama is elected in 2008, and Stevens did not retire during his first term, he would risk having to stay on the Court until he was 100 in order to make sure he was appointed by a Democrat. A President Obama would also likely get to appoint the replacement of Justice Ginsburg, who is now 75 and has had some health problems in the past. He would probably not get to appoint replacements for Justices Stephen Breyer (70) or David Souter (69), at least not in his first term. And he would almost certainly not get to appoint replacements for any of the four conservative members of the Court (Scalia, 72; Thomas 60, Alito, 58, Roberts, 53) all of whom are relatively young, in good health, Nor would he probably get to appoint the replacement of Justice Kennedy (72), who seems to be enjoying his role as the Court’s swing vote, and in any event would probably prefer to have a Republican President pick his successor.

If McCain were to become President, on the other hand, he would be able to appoint replacements for Stevens, Ginsburg, Breyer, or Souter only if they were physically unable to perform the duties of the office. Given the age of Stevens, and Ginsburg’s age and health problems, this is not a possibility that can simply be dismissed (it’s hard not to sound rather ghoulish when contemplating such things, but such is the nature of the Supreme Court appointment process). As for the other five, Roberts, Thomas, and Alito are young and spry enough that it’s unlikely they will be going anywhere anytime soon, and both Scalia and Kennedy seem to be having too much fun to want to pack it in (Scalia might want to retire if it looks like a Democrat is going to win in 2012; on the other hand, he probably isn’t too eager to have his replacement chosen by Mr. Campaign-Finance Reform).

The basic outlook, then, seems to be this: If Obama is elected President, he will almost certainly get to appoint at least one and quite probably two Justices to the Supreme Court. These Justices will replace Justices who are pro-Roe, and in so doing will shore up the currently fragile pro-Roe majority on the Court, but in terms of the end result will not move the Court appreciably to the left (on abortion or any other issue). If McCain is President, he has a good chance of getting to appoint at least one pro-Roe Justice (Stevens or Ginsburg, plus possibly Kennedy), and may get to replace the one anti-Roe Justice who is not likely to remain on the Court for decades to come.

All this raises the question of what kind of Justices McCain and Obama would be likely to appoint as President. However, since this post is far too long already, I will leave off consideration of this point for a future installment.


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  • You have a strangely blinkered view when justices are categorized only by their position on Roe v. Wade. As you know, that is not the case. Not only must we consider a potential nominee’s view on that particualr case, but on all issues related to justice and public morality. A major problem is that many of the so-called “anti-Roe” judges have awful records on other matters, including torture and the ability of executive to wage war.

  • S.B.

    As MM already knows, however, it is a falsehood to say that the Supreme Court has said anything about “torture.” That just isn’t so.

  • Oh, good grief, MM. The Supreme Court has almost nothing to do with torture or war decisions. That’s very weak.

    At best, you could maybe argue (given your extreme fondness for finding proportionate reasons never to oppose a liberal democrat) that justices in the mold of Stevens and Ginsberg are more likely to throw out capital punishment as “cruel and unusual” and decide that the second amendment only refers to the national guard.

    Personally I think that a rather weak justification for wanting to see the court head farther left and not only keep abortion but guarantee euthanasia and same sex marriage as rights as well (not to mention a host of left wing juridical ideas what are appalling at a strictly secular level) but if you’re going to go through the motions you might as well do it well.

  • Keep up the pretense, which seems like late-stage cognitive dissonance to me — the Hamden case was about torture, pure and simple, when the so-called “pro life” justices voted to disacrd the protections of Geneva Convention Common Article 3.

  • S.B.

    You’re completely misrepresenting that case, and I hope you’re not doing so deliberately. The Hamdan case was about the validity of military commissions — it did NOT involve torture, not in any way whatsoever.

    Your argument (such as I could imagine it, assuming a minimally good faith effort on your part) would have to be that: The Geneva Conventions would protect against torture, and by holding that the Geneva Conventions didn’t apply, the conservative Justices would have potentially opened the door to torture in some other case. But even that argument (assuming you ever made it) wouldn’t make sense . . . it’s not as if the Geneva Conventions are the only protection against torture. There’s also the McCain Amendment, for example.

    So what you’re doing here is exactly akin to this: Someone asks whether the Patriot Act applies to state-law crimes. The liberal members of the Supreme Court say no, it doesn’t address state-law crimes. A conservative partisan (analogue to MM) then says, “Well, in that case, the Patriot Act wouldn’t protect against rape, which is a state-law crime. That means liberal Justices are soft on rape!!! That’s why we have to vote McCain, to protect our women against rape.”

    Of course, the reason that’s a silly argument (just like MM’s) is that it ignores the elementary facts that 1) rape wasn’t at issue in the case at all, and it is sheerly dishonest to claim that the liberals were in favor of rape; and 2) there are plenty of other laws that DO address rape.

  • The so-called pro-life justices are anti-abortion and very pro-Bush, any Bush action. A little intellectual honesty here would help.

    Also, with a little intellectual honesty and clarity, of the 7 sitting justices who are Republican-appointed, 3 are pro-abortion, and 4 are anti-abortion. Of the past appointees, Republican Presidents are at best 50/50 for “getting it right” on abortion. The Republican Party has been nothing but rewarded for this failure to “get it right.” While abortion remains a major concern of social conservatives, these folks might end up with some wild, crazy Mike Huckabee-like economic ideas (some of which make Obama look like a pro-business conservative) with the abolition of abortion.

    Justice Stevens-why would this Republican-appointed justice be waiting for a Democratic President? More than a Republican?

    What’s up with this Republican incompetence? From finding pro-life supreme court justices, to disaster management, to nearly losing a war against stone age thugs in one country, to poorly, and unjustly choosing and executing a disastrous war in Iraq? This is the party that was all about “personal responsibility.” Please, these politicians with their history of bashing welfare mothers shouldn’t be allowed to manage the late shift at a McDonald’s. I wouldn’t trust them to organize a picnic.

    They’ve already had their chance to “get it right.” And failed. With this track record of incompetence, why is it so certain they will “get it right” now?

  • S.B.

    Keep up the pretense, which seems like late-stage cognitive dissonance to me — the Hamden case was about torture, pure and simple,

    I have a comment in moderation, but I’ll say again that this is just wrong, on the level of saying that “Roe v. Wade was about same-sex marriage, pure and simple.”

  • No, MM, Hamdan vs. Rumsfeld had to do with jurisdiction and whether “enemy combatants” are POWs, criminals, or something else. It had nothing directly and little even tangentially to do with torture.

    But even besides you factual mistakes, there’s something a little unseamly about the man who never found a “proportionate reason” he didn’t like blaming pro-lifers for Hamdan.

  • digbydolben

    When I studied Supreme Court decisions in political science courses in university, our professors said that the terms “liberal” and “conservative,” as they are used by demagogic politicians–like the Right-wing Catholics writing here, who are far more interested in scoring political points than in actually LESSENING abortion–have almost no relevance to what Justices actually do.

  • “They’ve already had their chance to “get it right.” And failed. With this track record of incompetence, why is it so certain they will “get it right” now?”
    Good question.

  • Darwin and Stuart are right. The Hamdan case didn’t involve torture. MM’s repeated insistence that it does is a little like the insistence of some on the right that the housing crisis was created by the CRA no matter how many times they have it explained to them that it isn’t so.

  • In any event, this post is about the Supreme Court and abortion. If someone finds the subject unimportant or has other matters they wish to discuss, there are plenty of other places in which to do so.

  • LJ

    Let’s see, the Republican’s failure to get it right is justification for ensuring the Democrat’s guarantee to get it wrong. Interesting.

  • Daniel H. Conway

    No, try this: Republicans can’t get it right on abortion in the sense of actually appointing Supreme Court justices that are pro-life. They are also immorally attached to a host of evil policies, deeds, and intents. More so than the Democrats.

    As a consequence, Democrats can be understood as a better choice.

    Because Republicans, despite what they say, do little to end abortion.

  • phosphorious

    The story that we are now sticking to is that republicans are. . . and have always been. . .against torture?

  • Looping back to BA’s original point:

    There’s a certain rythm to SCOTUS appointments, and justices do definitely try to time their retirements in order to be replaced by a president they like. Stevens and Ginsburg have been able to hold out through eight years of Bush, but it’s increasingly unlikely they could make it 4-8 more years. Electing a Democrat at this point, thus, does not move the court farther left, but it does definitely give those two particular Roe supporting seats another twenty years or more of like minded thinking.

    Frankly, I don’t see McCain as being a very good president when it comes to appointing justices, but I think he would make some basic attempt to pick justices who believe that laws say what they say, and might even manage to get one out of two who opposed Roe.

    In this regards, there’s a certain intellectual dishonesty to the Catholics who have been swarming out of the woodwork this year to assure us that it doesn’t matter which party we pick in regards to abortion because the Republicans have already had their chance to reverse Roe and haven’t.

  • “In this regards, there’s a certain intellectual dishonesty to the Catholics who have been swarming out of the woodwork this year to assure us that it doesn’t matter which party we pick in regards to abortion because the Republicans have already had their chance to reverse Roe and haven’t.”

    I’ve been saying this in blogland since 2004. I’m long on record as saying this.

  • I’m absolutely appalled by the wilful denial that’s going on here. Here’s constitutional law profressor Marty Lederman at the time:

    “Even more importantly for present purposes, the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever”—including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

  • c matt

    As long as we are being intellectually honest, let’s agree that both Republicans AND Democrats are wedded to a host of evil policies, deeds and intents. I do not see how one could honestly say Democrats are better. Different, certainly, but not better.

  • blackadderiv

    Common Article 3 provides that detained persons “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever”—including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

    All of which are already prohibited by U.S. law.

  • Daniel H. Conway

    “As long as we are being intellectually honest, let’s agree that both Republicans AND Democrats are wedded to a host of evil policies, deeds and intents.”

    No disagreement.

    But the God Blogs have spent the better part of the last decade promoting a conservative brand of Catholicism, wedded to the Republican party. The rise of Deal Hudsonism and the First Things Party are obvious examples. (Vox-nova differs on this and provides usually intelligent debates crossing the sides of the culture wars -those very productive battles we have waged for 25 years.)

    Blackadderiv is a smart and articulate representative of conservative Catholicism. His articles are always worth a read.

    In all fairness, McCain is the most likely Republican candidate ever advanced (including Reagan), should he become President, to actually choose an anti-abortion justice, just on that virtue alone. However, getting the right wing to accept that Republican appointed justices are only accidentally pro-life or pro-abortion is like pulling teeth. On this matter, the pro-life right wing has a credibility gap, to the detriment of pro-life goals.

    This goes back to my chronic complaint that pro-life goals have been shackled to other conservative goals and this has left some problems for the anti-abortion movement, particularly in this election cycle, and the possibility of this was evident in 2005-2006, and certainly after the 2006 election.

    But I stray off-topic.

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  • Daniel Conway,

    Understood, but in the timeframe of the SCOTUS, since 2004 is a blink of an eye.

    It strikes me as dead wrong for people to choose this particular moment to throw their hands up and say that electing Republicans is the wrong way to overturn Roe.

    I understand it must be rough to be a Catholic and a committed political progressive, given how morally bankrupt the progressive brand of politics has become in many respects over the last forty years. But honestly, if one can’t even manage to budge one’s movement an inch away from enthusiastic support of abortion, euthenasia, cloning, gay marriage, etc.; one can hardly be surprised if one’s fellow Catholics who _do_ take those issues seriously refuse to vote with one, or take one’s efforts in that regard very seriously.

    If all the effort which has been put into convincing Catholics to vote for Obama despite his morally repugnant stances had been put into founding a Christian Democrat party in the US, I might be able to respect the fervor. But as it is, I have a very hard time.

  • S.B.

    I’m absolutely appalled by the wilful denial that’s going on here. Here’s constitutional law profressor Marty Lederman at the time:

    And I’m appalled at the misreading and dishonesty here. All Lederman said — because he’s a partisan Democrat who is thinking about tools he could use against the Bush administration — is that IF the Geneva Conventions applied to these detainees, then that implies that if a torture case ever did come up, perhaps the detainee would be able to cite to the Geneva Conventions. Even Lederman wasn’t enough of a partisan to say that Hamdan was ITSELF about torture, let alone to accuse the conservative Justices of voting “for torture.”

    Again, my analogy is spot-on: Roe v. Wade wasn’t about gay marriage, but you could make the case that its principles of privacy and liberty could be used in some other case to create a right to gay marriage. That does NOT make it OK for a conservative partisan (the mirror of yourself) to accuse the Roe Justices of “voting for gay marriage, pure and simple.” That’s just not an honest way to discuss anything.

  • phosphorious

    So republicans are anti-torture.

    And republicans have been mostly in charge for the past eight years.

    So who has been torturing those people at Abu Ghraib and Guantanamo?