"For the Supreme Court, Younger Isn’t Necessarily Better"

A law-school classmate of mine was kind enough to allow me to post here his terrific bloggy op-ed with advice for President Obama as he considers his first Supreme Court nominee. The piece caries the same title as this post and goes a little something like this:

The conventional wisdom is that in choosing a successor for Justice David Souter, Barack Obama should rule out anyone over sixty years old. There is a surface logic to this reasoning -- after all, if Clarence Thomas is likely to have a forty-year run on the court, why shouldn’t President-elect Obama want the same fate for his nominees?  But, there are several reasons why, when it comes to Supreme Court justices, younger isn’t necessarily better.

First,  the idea of choosing young Supreme Court justices is based in part on the false assumption that Supreme Court justices are likely to step down from the court at random intervals. In fact, as Justice Souter’s retirement demonstrates, Justices can usually time their retirement.  Particularly when a justice is chosen based on his/her ideology, there is a strong likelihood that the justice will keep that in mind when it comes to retirement.  Obviously, octogenarians are not always able to control when they leave the bench (Justice Marshall is a poignant example of this phenomenon), but more often then not, a justice will be able to wait out a sitting President.

Second, it isn’t necessarily good for the Court for justices to sit on the bench for forty years. While some of the justices who have enjoyed long tenures on the Court have thrived (e.g., Justice Stevens), there is a danger that the longer a justice remains on the court, the more out of touch he or she will become.  To the extent President-elect Obama hopes to bring about lasting change, he should proceed based on the assumption that the President who is elected in 2028 will be able to choose just as wisely as he can when it comes to nominating Supreme Court justices.

Third, since President-elect Obama will likely want a nominee who brings additional diversity to the bench both in terms of family background and experience, it may be easier to accomplish this goal if he includes an older pool of potential nominees.  In particular, Obama may want to appoint the first Latino justice.  It is notable that the first Jewish Justice (Brandeis) was 60 when he was appointed, and the first African-American was 59.  This is likely because the Presidents who made the nominations wanted to make sure that no one could question the credentials of these nominees.  Further, if diversity on the bench is important to Obama, he should bear in mind that the pool of potential female, African-American, Latino, and Asian-American justices will keep increasing over time, and thus, if he chooses a 60-year old now, someone who is in his/her early 40s now will be able to replace that person.  Moreover, choosing an older justice may make it easier to find a nominee who has a longer, more diverse resume. For example, when Chief Justice Warren was tapped for the bench, he was already 62.  Likewise, Justice Marshall’s relatively advanced age gave him an opportunity not only to have a long career at the NAACP Legal Defense Fund, but also time as Solicitor General and as an appellate judge.

Fourth, if President Obama wants his nominee to make a big impact right from the start, it makes sense to choose a nominee who already comes to the court with a great deal of stature. Again, choosing someone who is a little longer in the tooth may make it easier to find someone who fits this bill.

Finally, some of you may be thinking that the Republicans choose young justices, so Obama should follow suit. But, there may be good reasons why what’s good for the goose isn’t necessarily good for the gander. The Republicans’ ideal justice is probably an originalist like Justice Scalia; their goal on the court (apart from approving ever-greater powers for the executive) is generally to stop the clock or, even better, turn the clock back to 1789. The dominant wing of the Republican party is certainly not interested in appointing justices who believe in a living constitution that will take into account, for example, the growing hostility to the death penalty throughout the world. Thus, if the Republicans can lock someone in now who will issue the same rulings for the next forty years, they will probably be happy.  But, just as President Roosevelt, appointing justices in the 1930s could not foresee that the key issues that would face the court in the 1950s and 1960s would be civil rights and civil liberties, President Obama ought to realize that he can’t foresee what issues will face the court in the 2030s. While I am confident that any nominee he will choose would be flexible enough to adapt to the world we will face in the 2030s, it is more likely that the President we elect in 2028 will have a better sense of the challenges the court is likely to face at that time.

Having said all of this, it may very well be that the best candidate for the Court turns out to be someone who is under 50.  But, President Obama should not overlook an outstanding candidate like California Supreme Court Justice Carlos Moreno simply because he has already celebrated his 60th birthday.