The Most Important Qualification for a Supreme Court Justice: Life Expectancy?

May 12, 2010

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This week, we found out that President Obama’s nominee will be current Solicitor General Elena Kagan.

Let’s get one question out of the way. What, exactly, does the Solicitor General do? She represents the government of the United States before the Supreme Court in cases where the government is one of the parties involved in the lawsuit.

Kagan is coming under fire on a few different fronts. Kagan hired 32 tenured and tenure-track professors when she was Dean of Harvard Law School. Only seven of these faculty members were female, and only one was a racial or ethnic minority. This could be explained by a relatively small sample size, or simply by the overabundance of white males in the law school ranks. Or it could be indicative of bias during the hiring process.

Kagan’s lack of judicial experience is also a concern to many. Although Kagan has considerable experience in academia, she has never presided over an actual trial.

Despite this, it is quite possible that Kagan will be confirmed by the Senate. If she joins the high court, it would have three female justices for the first time ever (Justices Ruth Bader Ginsburg and Sonia Sotomayor being the other two).

Perhaps more important is her age. At 50, she would be the youngest justice currently serving on the court (although she’s considerably older than Justice Joseph Story, who was just 32 when he was appointed by President Madison in 1811).

Age is an important consideration in a Supreme Court Justice because the justices are appointed for life. A justice cannot be fired. There is a good reason for this, of course – to insulate a sitting justice from political pressure. An influential senator cannot strong-arm a justice with any threats.

While the judicial branch is separate from the executive and legislative branches, it is nonetheless affected by those branches. Justices are nominated by the President and confirmed by the Senate. The end result is that the justice often represents the views of the president who appoints them. It would be nice if justices were selected based solely on merit, but this simply is not the case. Every president attempts to influence the court with the justices they appoint.

Appointing a Supreme Court Justice is perhaps the most impactful thing a president can do – influencing important judicial decisions for decades after the president leaves office. I’m not a big fan of having the other two branches exert so much influence over the judicial branch, but I’m also not sure how this could be achieved in a more fair manner, aside from setting the confirmation bar very high (80%?) to ensure bipartisan support? I’m not sure if even the ghost of George Washington could get 80% approval in the Senate.

The justices are also not oblivious to political ramifications. Justices will often time their resignations to occur during the tenure of a president who is likely to replace them with a similar justice. When a justice is unable to this – for example, if they die suddenly – there can be a seismic shift in the makeup of the court.

From a partisan perspective, then, the perfect justice would not only align with the beliefs of the President and Senate, but would also be young and in good health in order to influence the direction of the court for many years to come before voluntarily stepping down at the perfect time for a suitable replacement to be seated on the court. The next step in vetting a nominee (if it isn’t already being done) may be a deep look into the medical history of the nominee and the nominee’s family, in an effort to determine the nominee’s susceptibility to heart attacks, strokes, and other ailments that could kill or incapacitate a justice.

I wonder what sorts of birthday presents a justice gets? Perhaps a health club membership and a fruit basket from the leader of the party that aligns with their beliefs – and an annual membership at the Gorge Yourself 24 Hour Buffet from the leader of the opposing party?

3 Comments (+add yours?)

  1. Martin Kelly
    May 12, 2010 @ 14:00:23

    Kosmo, I am not so sure I agree with your premis that we want long tenured Supreme Court Justices. I actually want to see someone with a lot of experience, even if I disagree with their philosophy. And there is a way to ‘fire’ a justice, it is the same impeachment process that is required to remove a sitting President.

    I only have one true gripe with this nomination, and it is the same problem I had with Bork back when Reagan was president. A pure Acedeme can not understand that reality trumps theory. Bork was some what worse in that he was a deconstrutionalist (every word in a document mean exactly what it means today and there is no context). Kegan is just a professor and dean. Her hiring record is realy a reflection of the school, not her, as those decisions are made by a board with her as the hiring agent.

    I do like the analysis. One other ‘siesmic’ change catylist is when the justice has a major change of attitude once on the bench. Justice Kennedy is one such character. He represented himself as a very conservative, religiously focused person, but (luckily?) has turned out to be the most moderate member of the court.


  2. kosmo
    May 12, 2010 @ 14:31:37

    I’m not suggesting that *I* want a long tenured justice. I described the perfect justice “from a partisan perspective” – not from my own.

    I suspect that there are an awful lot of extremists on either side of the political spectrum that care much more about the political leanings of the nominee than the experience. Having a younger justice guards against a long hold on the presidency of one party. For example, a justice appointed by Carter in 1977 would have had to stay in office until 1993 in order to be replaced with an equally liberal justice. A 50 year old is likely to survive those 16 years. A 65 year old is considerably less likely.

    I tend to agree with you on Kagan’s hiring record. According to an analysis by, the other law schools in the top 5 had 27% women and 12% racial/ethnic minorities. Harvard Law was within rounding errors of those numbers overall. The number of hires under Kagan – 22% and 3% – were a bit low, but with that small of a sample to draw from, it’s fairly likely to just be random chance. If we’re looking at 1000 hires, I’d be more willing to draw conclusions.

    You’re correct about the ability to impeach a justice. It’s possible, but really a longshot barring extreme misbehavior on the part of the justice. Unless a justice kills somebody, they’re probably going to stay in office as long as they wish.


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