When 50 is Too Old
How to get more experienced justices on the Supreme Court.
Richard Primus
The New Republic
Published: Monday, May 11, 2009
It is now widely understood that presidents must value youth in their Supreme Court nominees. The reason lies in the combination of two factors: life tenure and the party system. Because justices serve for life, presidents can increase their influence on the law by choosing young nominees. Given two-party competition, this incentive can provoke an unhealthy game of how-low-can-you-go: If one party nominates young justices, the other party risks ceding long-term control of the judiciary if it does not choose justices who are at least as young. As a result, it is hard for anyone much older than 50 to be a serious contender to fill David Souter's seat.
Things have not always been this way. Between 1945 and 1980, both parties wanted their nominees to dominate the Court, but the locus of competition lay in winning presidential elections, and perhaps in choosing effective justices, rather than in choosing young ones. In that period, there were 18 new justices, and their median age upon appointment was 55.5 years. Crucially, 55.5 was the median age for the eight Democratic appointees and also for the ten Republican appointees.
That equilibrium unraveled in the 1980s, when the Reagan administration made youth part of its well-planned strategy for reshaping the federal courts. Subsequent Republican administrations followed suit. Since 1980, three Republican presidents have appointed seven justices, and with the exception of Samuel Alito, who was 55, none has been older than 51. The Democrats have not kept pace: The only two Democratic appointees during the same period, Stephen Breyer and Ruth Bader Ginsburg, were 56 and 60 respectively. This time, with Democrats keenly aware of their minority status on the bench, the pressure on the president will be intense to pick someone who is 50 at most.
That's too bad. Not because 50 is too young for a good justice; some people are perfectly ready by that age. (Pamela Karlan is 50, and she is about as capable a constitutional lawyer as is biologically possible.) But age and wisdom are at least sometimes correlated, and foreclosing consideration of more senior candidates means excluding people who might make terrific justices. Often the best person for the job might be someone with another ten years of experience as a judge, a lawyer, or even just a citizen. Today, even candidates in their mid-50s are acceptable only if President Obama is at peace with continuing to give up a half-dozen years, on average, to his Republican counterparts. And nothing prevents a future administration from pushing the ceiling down from 50 to 45.
(More here.)
Richard Primus
The New Republic
Published: Monday, May 11, 2009
It is now widely understood that presidents must value youth in their Supreme Court nominees. The reason lies in the combination of two factors: life tenure and the party system. Because justices serve for life, presidents can increase their influence on the law by choosing young nominees. Given two-party competition, this incentive can provoke an unhealthy game of how-low-can-you-go: If one party nominates young justices, the other party risks ceding long-term control of the judiciary if it does not choose justices who are at least as young. As a result, it is hard for anyone much older than 50 to be a serious contender to fill David Souter's seat.
Things have not always been this way. Between 1945 and 1980, both parties wanted their nominees to dominate the Court, but the locus of competition lay in winning presidential elections, and perhaps in choosing effective justices, rather than in choosing young ones. In that period, there were 18 new justices, and their median age upon appointment was 55.5 years. Crucially, 55.5 was the median age for the eight Democratic appointees and also for the ten Republican appointees.
That equilibrium unraveled in the 1980s, when the Reagan administration made youth part of its well-planned strategy for reshaping the federal courts. Subsequent Republican administrations followed suit. Since 1980, three Republican presidents have appointed seven justices, and with the exception of Samuel Alito, who was 55, none has been older than 51. The Democrats have not kept pace: The only two Democratic appointees during the same period, Stephen Breyer and Ruth Bader Ginsburg, were 56 and 60 respectively. This time, with Democrats keenly aware of their minority status on the bench, the pressure on the president will be intense to pick someone who is 50 at most.
That's too bad. Not because 50 is too young for a good justice; some people are perfectly ready by that age. (Pamela Karlan is 50, and she is about as capable a constitutional lawyer as is biologically possible.) But age and wisdom are at least sometimes correlated, and foreclosing consideration of more senior candidates means excluding people who might make terrific justices. Often the best person for the job might be someone with another ten years of experience as a judge, a lawyer, or even just a citizen. Today, even candidates in their mid-50s are acceptable only if President Obama is at peace with continuing to give up a half-dozen years, on average, to his Republican counterparts. And nothing prevents a future administration from pushing the ceiling down from 50 to 45.
(More here.)
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