Will Stephen Breyer retire this summer?

[Geoffrey Howe]

They are, primarily, not partisan. They are appointed by whichever party because they have a view of the law which tends to yield results that party prefers. In any case, this has heretofore been quite unsuccessful, but my point is that they reach these results not because they are Republicans/Democrats or chosen by Republicans/Democrats; they are chosen because they are likely to reach those results.

This is, perhaps, an argument you could have made in the 1990s. It does not hold much water today, more than two decades after the Republican Justices installed a Republican President.

I’m open to hearing examples of blatant partisanship (and don’t deny they occur). But in the main I think this is still true. With the rise of originalism, Republican presidents can be more confident that their Justices will align with them (though still not always), but, again, that is a function of their (abstract) view of the law, not who they vote for.

[Statilius the Epicurean]

You said that 67 votes should be required for appointment to promote bipartisanship (or politically neutral judges). My point is that this hasn’t helped much elsewhere.

Because bipartisanship required by the filibuster could be circumvented by changing the Senate rulebook with 50 votes on a party line....

They are, primarily, not partisan. They are appointed by whichever party because they have a view of the law which tends to yield results that party prefers. In any case, this has heretofore been quite unsuccessful, but my point is that they reach these results not because they are Republicans/Democrats or chosen by Republicans/Democrats; they are chosen because they are likely to reach those results.

As for why there is such a spectacle, I think this is because both parties have realised that it is more enduring and effective to get their ideas deemed as enshrined in the Constitution rather than getting people to vote for them. (This is a flaw of the constitutional system.)

Right, so the claim that justices "aren't partisan" is semantics.

Mitch McConnell isn't an idiot. If Republican and Democratic justices didn't exist, then he wouldn't have bothered blocking Merrick Garland. And RBG, also not an idiot, would have happily stepped down under Trump to preserve her health.

[Geoffrey Howe]

You said that 67 votes should be required for appointment to promote bipartisanship (or politically neutral judges). My point is that this hasn’t helped much elsewhere.

Because bipartisanship required by the filibuster could be circumvented by changing the Senate rulebook with 50 votes on a party line....

I think I’m missing the point you’re trying to make.

They are, primarily, not partisan. They are appointed by whichever party because they have a view of the law which tends to yield results that party prefers. In any case, this has heretofore been quite unsuccessful, but my point is that they reach these results not because they are Republicans/Democrats or chosen by Republicans/Democrats; they are chosen because they are likely to reach those results.

As for why there is such a spectacle, I think this is because both parties have realised that it is more enduring and effective to get their ideas deemed as enshrined in the Constitution rather than getting people to vote for them. (This is a flaw of the constitutional system.)

Right, so the claim that justices "aren't partisan" is semantics.

Mitch McConnell isn't an idiot. If Republican and Democratic justices didn't exist, then he wouldn't have bothered blocking Merrick Garland. And RBG, also not an idiot, would have happily stepped down under Trump to preserve her health.

Yes, perhaps it is a semantic difference and I’m too sensitive to criticism of the Justices.

[brucejoel99]

Ah yes, the filibuster has been great at encouraging bipartisanship.

The filibuster was in the Senate rulebook and was circumvented by the nuclear option requiring 50 senators. Everything being discussed here (term limits etc.) would require a constitutional amendment to add and remove.

FWIW, a rotation system &/or mandatorily-designated "senior status" age that operates as a quasi-retirement age probably wouldn't require a constitutional amendment. All that the Constitution says on the matter is that "Judges... shall hold their Offices during good Behavior," & there's theoretically nothing stopping a statutory mandatorily-designated senior status - perhaps one that includes subbing in during a vacancy or recusal on the Court, sitting-by-designation on the lower courts as retired justices are already entitled to do, the ability for parties to seek a ruling from the full Court sitting en-banc (i.e., the entire Court including all mandatorily-designated senior justices who wouldn't have otherwise participated but for an active justice's recusal or some such similar reason), etc. - from counting as "hold[ing] their Office" insofar as complying with the Constitution is concerned. Emphasis on theoretically, of course. For obvious & purely political reasons, one shouldn't have much - if any - confidence in any judge &/or the Court itself actually allowing such a statute to stand.

[Statilius the Epicurean]

I think I’m missing the point you’re trying to make.

The filibuster for judicial confirmations failed to stop constitutional hardball over judges because there was always an out for the governing party to remove it if they had 50 votes. That's part of the reason why (as unlikely as it is) you need a constitutional amendment to deal with the problem.

[Geoffrey Howe]

I think I’m missing the point you’re trying to make.

The filibuster for judicial confirmations failed to stop constitutional hardball over judges because there was always an out for the governing party to remove it if they had 50 votes. That's part of the reason why (as unlikely as it is) you need a constitutional amendment to deal with the problem.

Oh right. I suspect it would just result in paralysis; having to get to 60 votes hasn’t encouraged much bipartisanship’s.

[Donerail]

This is, perhaps, an argument you could have made in the 1990s. It does not hold much water today, more than two decades after the Republican Justices installed a Republican President.

I’m open to hearing examples of blatant partisanship (and don’t deny they occur). But in the main I think this is still true. With the rise of originalism, Republican presidents can be more confident that their Justices will align with them (though still not always), but, again, that is a function of their (abstract) view of the law, not who they vote for.

The "rise of originalism" is not particularly important; given the multiple forms of originalism and the extent of historical scholarship you can fashion an "originalist" argument in favor of just about anything. Part II of Justice Breyer's dissent in Heller, for instance, surveys a range of laws in the colonies that restricted gun ownership, while Justice Scalia's majority likewise draws on various founding-era statutes to support the opposite conclusion. Left-leaning judges and justices are less conversant in it and less likely to draw upon it unprompted, but the tradition does not exclude left-wing results.

What has changed, particularly in the last twenty years, is that Republican presidents can be confident their judges will align with them because they are members of a club that reinforces their ideology at every turn. It's explicitly not an originalist club, or a textualist one — it's dedicated to advancing political conservatism. There’s maybe a distinction you can draw between the interests of the “conservative legal movement” and the Republican Party, but I’m not inclined to give it much weight.

[Statilius the Epicurean]

I think I’m missing the point you’re trying to make.

The filibuster for judicial confirmations failed to stop constitutional hardball over judges because there was always an out for the governing party to remove it if they had 50 votes. That's part of the reason why (as unlikely as it is) you need a constitutional amendment to deal with the problem.

Oh right. I suspect it would just result in paralysis; having to get to 60 votes hasn’t encouraged much bipartisanship’s.

Yes, I suppose it's possible that parties would just point blank block even the most moderate nominations by the opposing party and the federal judiciary would cease to function. But if that's the case then divided government is impossible and a civil war would be on the cards.

Presumably if a constitutional amendment requiring 67 votes for federal judicial confirmations did pass, it would only do so as part of some bipartisan agreement to depoliticise the judicial branch.

[Geoffrey Howe]

This is, perhaps, an argument you could have made in the 1990s. It does not hold much water today, more than two decades after the Republican Justices installed a Republican President.

I’m open to hearing examples of blatant partisanship (and don’t deny they occur). But in the main I think this is still true. With the rise of originalism, Republican presidents can be more confident that their Justices will align with them (though still not always), but, again, that is a function of their (abstract) view of the law, not who they vote for.

The "rise of originalism" is not particularly important; given the multiple forms of originalism and the extent of historical scholarship you can fashion an "originalist" argument in favor of just about anything. Part II of Justice Breyer's dissent in Heller, for instance, surveys a range of laws in the colonies that restricted gun ownership, while Justice Scalia's majority likewise draws on various founding-era statutes to support the opposite conclusion. Left-leaning judges and justices are less conversant in it and less likely to draw upon it unprompted, but the tradition does not exclude left-wing results.

This is certainly true (and a retort to the idea that originalism makes judges more “honest”). There seems to have been a lot of blatant partisanship or political views in the 19th and early 20th centuries. Perhaps 1950-1990 is beginning to look like a golden era?

My point is not to criticize judges’ use of history in general or to suggest that it always generates indeterminate answers; I have already emphasized that historical study can discipline as well as enrich substantive due process analysis. My point is simply that Justice Scalia’s defense of his method, which holds out objectivity and restraint as its cardinal—and, it seems, only—virtues, is unsatisfying on its own terms. For a limitless number of subjective judgments may be smuggled into his historical analysis. Worse, they may be buried in the analysis. At least with my approach, the judge’s cards are laid on the table for all to see, and to critique.

[Progressive Pessimist]

I really hope so. He'd be stupid not to and be repeating the very same dire, grave, earth-shattering mistake that his former colleague made before the GOP took over the Senate in 2015.

If he really wants appointees to transcend retiring when the party of the President who first appointed them is in power, he should encourage Clarence Thomas to be the one to do so instead. It would especially be poetic since Biden, somewhat infamously, was the Judiciary Chairman when Thomas was confirmed. No more unilateral disarmament in the face of destructive, reactionary forces who would never do the same!

[freepcrusher]

rule of 90 (age+YOS) seems perfectly reasonable to me.

[True Federalist (진정한 연방 주의자)]

Maybe next summer, but not this summer.

[Frodo]

No, he will pull a Ruth Bader Ginsburg, and probably have a Republican president and Senate pondering on which Federalist Society acolyte to replace him with.  

[Ferguson97]

Probably some time in 2022.

[Skill and Chance]

I think the odds just went up significantly after he got to write the Obamacare decision.

[SnowLabrador]

I think the odds just went up significantly after he got to write the Obamacare decision.

Hopefully. I don't want a SCOTUS confirmation battle in 2022; that can only help the GOP.

[brucejoel99]

I think the odds just went up significantly after he got to write the Obamacare decision.

Unless his writing it is a signal of the opposite: his importance on the Court. Granted, we're all probably reading a bit too much into the tea leaves at this point. Hell, had the infamous toilet flush occurred this May instead of last, there probably would've been people who'd be like, "HE FLUSHED HIS TOILET DURING THE MIDDLE OF ORAL ARGUMENTS! IS THAT AN INDICATION THAT HE'S LOST ALL RESPECT FOR SUCH A CONSERVATIVE COURT & THUS JUST DONE & LEAVING ASAP?!"

[Karenthecomputer]

No, but he will next summer

[Amenhotep Bakari-Sellers]

He will probably retire next Summer, if he does retire, he has a full yr still until the Midterms