Thinking ahead to the Retirements of Justices Ginsburg, Scalia, and Kennedy.

May 10th, 2010

While everyone is consumed with Justice Stevens’s vacancy and the nomination of General Kagan, I’d like to think a bit about the next three confirmation battles–Justices Ruth Bader Ginsburg, Antonin Scalia, and Anthony Kennedy.

Although Justice Ginsburg will be 78 at the completion of the October 2010 term, she shows little signs of slowing down. Unlike the two previous Justices to resign, Justice Ginsburg has hired 3 law clerks for the October 2011 term, so signs are pointing towards her returning for the October 2011 Term.

If she decides to retire at the end of the October 2011 Term–June 2012–her retirement would become an election year issue. Assuming there is a filibuster until the November election, which is totally plausible, the nomination could be made by a new President. A recess appointment by President Obama could be a blast. Alternative, if she sticks around for the October 2012 Term, and retires after that, a different President could replace her.

If the GOP picks up that White House, you could see Justice Ginsburg’s seat go to Judges Brett Kavanaugh or Jeff Sutton. Can you imagine the fight over giving Ginsburg seat–a legend in the liberal establishment–to Kavanaugh or Sutton? It would make the Bork nomination look tame.

And then, two years down the road in 2014, Justice Scalia at the age of 78 would likely retire.  Assuming Justice Kennedy retires around that time, the Supreme Court would add a 6th solid conservative vote.

So imagine a voting bloc of Roberts, Thomas, Alito, Kavanaugh, Sutton, and say, Janice Rogers Brown or Diane Sykes. Justices Breyer, Sotomayor, and Kagan would feel quite lonely.

Though, imagine the alternative. President Obama wins reelection and appoints replacements for Justices Ginsburg, Scalia, and Kennedy (Though I can’t imagine Justice Scalia actually retiring during an Obama Presidency).

Imagine a voting bloc of Breyer, Sotomayor, Kagan, Sidney Thomas, Judith Rogers, and Anne Williams. The Chief, Alito, and Thomas would feel quite lonely in this situation.

Fun times are ahead.