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When Obama picks a new Supreme Court justice, older is better

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By Montgomery Kosma
Sunday, April 25, 2010

With Justice John Paul Stevens stepping down from the Supreme Court this summer, many are advising President Obama to nominate a relatively young candidate such as Solicitor General Elena Kagan (age 49). Strong contenders such as 7th Circuit Judge Diane Wood, 59, or D.C. Circuit Judge Merrick Garland, 57, are considered too old. After all, presidents don't get many chances to affect the composition of the high court -- all else being equal, why not appoint justices who are likely to serve the longest and make their presence felt in those pivotal 5 to 4 decisions?

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Younger appointees do tend to last longer on the court. Among our nation's 102 retired justices, those nominated at age 50 or younger had an average tenure of 19 years, whereas those nominated at 60 or older averaged 12 years of service. But a president's legacy is defined not only by how long his appointee serves, but also by the durability and influence of the justice's opinions. And by that yardstick, the president may be better off appointing an older justice than a younger one.

Judges decide cases by relying on past opinions as precedents, and they explicitly quote from or cite past opinions in formulating new ones. So if you want to gauge a justice's long-term influence, measuring how frequently the Supreme Court or the courts of appeals cite his or her opinions is a decent proxy. Of course, it's not a matter of simply counting the citations; several other factors must be considered, such as the fluctuating number of Supreme Court decisions per year, the dramatic increase in the volume of appeals court cases and the generally rising number of citations that judges include in their opinions. To put it in business terms, the influence exerted by a justice's opinions is the "return on investment" a president gets for appointing that person to the court.

In a study published in the University of Chicago's Journal of Legal Studies, I examined the more than 24,000 majority opinions authored by our nation's first 99 justices, as well as the 1.2 million citations of those opinions in subsequent Supreme Court and appeals court cases. I found that Supreme Court decisions are highly durable -- half the instances in which an opinion is cited occur more than 14 years after the opinion was written. Since the average justice's tenure is well over a decade, a president should expect that his nominee will probably influence the law for more than 25 years.

However, a justice's age at the time of appointment bears virtually no relationship to his or her total career influence. All else being equal, a 60-year-old nominee exerts the same net influence over subsequent cases as a 50-year-old nominee, despite a career that is several years shorter. Indeed, several highly influential justices joined the court as relatively older nominees, such as Oliver Wendell Holmes (61), Louis Brandeis (59) and George Sutherland (60).

This means the influence of older nominees is more concentrated. One explanation may be the nature of judging itself. "Mature professional judgment is central to the concept of a wise judge, and the intellectual and dispositional qualities that go to create such a judgment plainly improve with age up to a point," Judge Richard Posner wrote in his book "Aging and Old Age."

A president should prefer an older nominee's more concentrated influence for two reasons. First, that influence will be felt more quickly, having a more significant impact on legal debates during or shortly after the president's own term of office. Second, the direction of that influence may be more predictable. An older candidate may have more established views, whereas a younger nominee has more time for his or her views to evolve. Indeed, presidents from James Madison to George H.W. Bush have regretted the unanticipated intellectual evolution of relatively young Supreme Court appointees.

When choosing a new justice, therefore, Obama should consider age before beauty. The question isn't if Garland and Wood are too old. Rather, is Kagan old enough?

mkosma@greenbag.org

Montgomery Kosma is a member of the Supreme Court bar and a co-founder of "The Green Bag: An Entertaining Journal of Law."


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