Tuesday, May 12, 2009

How Low Can You Go?

From When 50 is Too Old by Richard Primus:

It is now widely understood that presidents must value youth in their Supreme Court nominees. The reason lies in the combination of two factors: life tenure and the party system. Because justices serve for life, presidents can increase their influence on the law by choosing young nominees. Given two-party competition, this incentive can provoke an unhealthy game of how-low-can-you-go: If one party nominates young justices, the other party risks ceding long-term control of the judiciary if it does not choose justices who are at least as young. As a result, it is hard for anyone much older than 50 to be a serious contender to fill David Souter's seat.

Things have not always been this way. Between 1945 and 1980, both parties wanted their nominees to dominate the Court, but the locus of competition lay in winning presidential elections, and perhaps in choosing effective justices, rather than in choosing young ones. In that period, there were 18 new justices, and their median age upon appointment was 55.5 years. Crucially, 55.5 was the median age for the eight Democratic appointees and also for the ten Republican appointees.
Read the rest here.

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