Bench Memos

Forecasting the Next Supreme Court Vacancy and Nominee

On SCOTUSblog, Tom Goldstein has a long and interesting post in which he forecasts that (1) Justice Stevens “very likely will retire” this spring; (2) Justice Ginsburg “definitely will not”; and (3) President Obama will nominate Elena Kagan to replace Stevens.

My own assessments differ primarily in nuance from Goldstein’s (and that may well be because he has better access to inside information than I do).  As I’ve been saying since September of last year, I believe that Stevens’s hiring of only one clerk for next term is a clear signal that he intends to resign.  One circumstance that I think could change Stevens’s plan would be if Ginsburg’s health were to lead her to resign.  Goldstein emphatically dismisses that possibility, but he’s no more of a doctor than I am, and while I have no reason to doubt Goldstein’s basic account of Ginsburg’s current intention to stay on the Court, I think that his professed certainty that health reasons won’t lead her to resign is excessive.

My own prediction is that Stevens will announce his resignation shortly after his 90th birthday, either on April 28 (after the last oral argument of the term) or on April 30 (after the Court’s conference on the last set of argued cases).

Goldstein labels Kagan the “prohibitive front runner” to replace Stevens.  I regard her as the presumptive favorite, largely for some of the reasons that Goldstein outlines, including that, unlike Diane Wood, Kagan doesn’t have a “material track record” on many issues, that she has the support of a small number of academic conservatives at Harvard, and that she will turn only 50 this year (as it happens, on April 28—one of the two days on which I expect Stevens might announce his resignation).  On the other hand, I think that Goldstein understates the strength of the case that conservatives can make against Kagan (though perhaps not as much as he overstates the supposed success of the Sotomayor nomination).  I also wonder whether there are folks on the Left who will vigorously and effectively object to the prospect of a Kagan nomination, and I wonder further whether the White House has given adequate attention to the extensive recusal obligations that Kagan would face over the next couple of years.