Judges and politics

This is Joseph.

The question of whether Stephen Breyer should retire back in the news because a prominent congresswomen has opined on the issue. It seems that the reason he is reluctant is that he thinks a retirement now would look political. This is absurd.

Let us look at the sequence of the last several SCOTUS judges (dates from wikipedia):

February 13, 2016: Justice Scalia dies

March 16, 2016: Merrick Garland is nominated by a Democratic president

April 10, 2017: Justice Gorsuch replaces Scalia, nominated by a Republican president

July 31, 2018: Justice Kennedy retires and is replaced by a Republican president

September 18, 2020: Justice Ginsberg dies

October 27, 2020: Justice Barrett replaces Ginsberg, nominated by a Republican president

So you already have a norm-breaking hold (election year?), a strategic retirement, and then a actual super-fast replacement. Then you get this where the Republican senate leader threatens to block a nominee in 2024 (or even 2023) if the Republicans are in the majority. 

Now I am not a court expert but I would say that this pattern of facts suggests that it is way too late to avoid a SCOTUS retirement being political. Now if you think that the issues in front of the court have no political weight then maybe it is ok that only Republicans get to nominate supreme court judges. But the ratio of R to D nominees is 6 (mean age 60) to 3 (mean age 70). Now look at some of the cases coming, including abortion, a right to concealed carry, affirmative action in higher education, the affordable care act, and voting rights. There are some key items of current policy debate that would be best solved with a balanced court. The traditional 5-4 balance was a good place to be, even if there was a tilt in one direction. 

But the senior Democratic appointed justice, an 82 year old, is likely to have a limited number of chances to retire with both a Democratic President and a Democratic senate majority. If we take the Republicans at their word and the last five years of actions, these are the only conditions that a Democrat appointed justice would seem to be able to occur.

We can discuss whether it is good that the SCOTUS system has become heavily politicized but a refusal to retire isn't going to help (ask about how that worked out for Justice Ginsberg). Now there could be other reasons not to retire (enjoying one's job) but trying to increase civic virtue in terms of nominations seems odd.