With the pro and anti Hillary debate raging this morning, I thought it would be useful to take a look at the state of the SCOTUS, to highlight just what the consequences would be if we are unable to win the WH in 2008. I will look at the ages of the justices, how old they would be by Election Day 2012, the chances of them staying on until then, and the impact on the balance of the court. Details after the flip...
Justices listed in age order, oldest first (O'Connor excluded):
Stevens
Current age: 85
Time on the court: 30 years (12/17/75)
Age on Election Day 2012: 92
Almost no chance of Stevens remaining through 2012. I am just hoping he will hang on through 2008.
Ginsburg
Current age: 72
Time on the court: 12 years (8/10/93)
Age on Election Day 2012: 79
Possible, but unlikely she would remain through 2012.
Scalia
Current age: 69
Time on the court: 19 years (9/26/86)
Age on Election Day 2012: 76
I think he would hang on through a Democratic administration, health permitting, since he is such an ideologue. He would probably retire under a Republican president.
Kennedy
Current age: 69
Time on the court: 17 years (2/18/88)
Age on Election Day 2012: 76
Hard to say if he would remain. I don't think he would care whether the administration was Dem or Rep. Call it 50/50.
Breyer
Current age: 67
Time on the court: 11 years (8/3/94)
Age on Election Day 2012: 74
There is a chance he would retire by 2012, but I think he would stay around (health permitting) if there was a Republican president.
Souter
Current age: 66
Time on the court: 15 years (10/8/90)
Age on Election Day 2012: 73
Since he was appointed by a Republican, there could be a higher chance he would retire under a Rep. president. Probably more likely than not he would stay on either way through 2012.
Thomas
Current age: 57
Time on the court: 14 years (10/23/91)
Age on Election Day 2012: 64
Almost no chance he would retire under a Dem. president. Unlikely that he would retire in any case.
Roberts
Current age: 50
Time on the court: 1 month (9/29/05)
Age on Election Day 2012: 57
Barring a serious health problem, no chance at all he would retire before 2012.
Assuming for the sake of this argument that Alito is confirmed:
Current age: 55
Age on Election Day 2012: 62
Almost no chance he would retire before 2012.
Analysis:
Assuming there are no more vacancies for the remainder of Bush's term, the court will look like this as the new president takes office:
Conservatives: Scalia, Thomas, Roberts, Alito
I think we can safely assume that Roberts and Alito will vote with Scalia/Thomas most of the time, including almost all of the major 5-4 decisions.
Liberals: Souter, Ginsburg, Breyer, Stevens
Swing (leaning conservative on many issues): Kennedy
Looking at the conservative bloc first, Roberts, Alito and Thomas would not be going anywhere before 2012, and as previously mentioned Scalia would be very unlikely to retire under a Democratic president. Therefore the conservative bloc appears likely to remain intact through 2012.
Among the liberals, Stevens would be an almost guaranteed retirement, Ginsburg would be likely, with Souter and Breyer possibles. So at least 2 of the liberal bloc would depart by 2012, and possibly all of them.
Kennedy is a 50/50 proposition, regardless of the party in the WH.
So, if a Republican is in the WH through 2012, the absolute best case for us (only Stevens retires from the liberal bloc) would still give the wingnuts a 5 justice majority, since a Stevens replacement would probably be in the same mold as Roberts and Alito given the current state of the Republican party. At the other extreme, it would be possible (if Kennedy, Ginsburg, and either Souter or Breyer also retired), that the wingnuts could have as many as 8 of the 9. A middle ground scenario would give them 6 of the 9 seats.
If a Democrat wins in 2008, Stevens and Ginsburg can safely retire, and we could even have the opportunity to move the court to the left if Kennedy retires. Our best case in this scenario would have liberals holding 6 of the 9 (if Kennedy and Scalia retired), while the worst case would be status quo, with Kennedy holding the balance of power between equal liberal and conservative blocs.
As you can see, with a large group of SCOTUS justices approaching or reaching retirement age between 2008 and 2012, the stakes are huge. The next president is likely to have at least 2, and possibly 3 or even 4 SCOTUS nominations, just in their first term.