Basically, partisan politics aren't supposed to be a part of it. But of course, they are. And behind the scenes, everyone is gaming out how this or that pick or retirement will impact the future of the court.
Such is the case with one particular aspect of Neil Gorsuch's nomination: his age, 49. And while President Trump was pretty staid and un-Trump-like at his news conference Tuesday night, he did make one nod to the political advantage that the man he chose brings to the table.
"Depending on their age, a justice can be active for 50 years, and his or her decisions can last a century or more and can often be permanent," Trump noted.
And that's a big reason Republicans love the Gorsuch pick. Not only is he a demonstrated originalist in the mold of the man he would replace, the late justice Antonin Scalia; but he would also be providing the right flank of the court potentially decades of service. The idea of his serving 50 years is fanciful, given that Gorsuch would be 99 years old and no justice has ever served that long, but the point stands: The younger the nominee, the longer he or she is likely to hold down a spot for your side.
And, in fact, Gorsuch is only the second 40-something nominee since 1971 and the fourth since World War II. The most recent to be nominated before his 50th birthday — Clarence Thomas — has inhabited the court for 26 years now and is still going strong in his late 60s.
In Gorsuch, Trump would be adding a 49-year-old to a court whose average age has been among the oldest ever. The average age of a justice was over 70 before Scalia's death a year ago.
We're drawing something of an arbitrary line with Gorsuch here, I'll admit. While that "4" as the first digit in his age seems important, two of the last four nominees — John G. Roberts Jr. and Elena Kagan — were both 50 at the time, just one year older. And the four picks before Thomas were all between 50 and 52. So not a huge difference.
But as this great chart from Philip Bump shows, those younger nominees do tend to serve longer. The four justices to serve at least three decades since the dawn of the 20th century were all between 45 and 55 upon being nominated. Those with the shortest tenures in the last 50 years — Warren Burger and Lewis Powell — were appointed at the ages of 62 and 65, respectively.
The age factor has become a much bigger one over the years, as Americans — and justices, by extension — have been living longer. Some object to the concept of lifelong appointments for Supreme Court justices, noting that life expectancy was only 49 years old as recently as 1900, and the political stakes of these appointments have accordingly become much bigger and longer-lasting. They argue that the founders never intended for justices to all serve decades.
Oliver Wyman has some good data on this. A new infographic shows that the average age of the first 10 Supreme Court justices to voluntarily vacate their seats was 59. The average age of the last seven? 80.7 years old.
Applying that number to Gorsuch would mean he would be on the court for more than 30 years — until around the year 2050.
Back in 2011, The Post's great Supreme Court reporter, Robert Barnes, graced us with this anecdote about Kagan's confirmation:
The phone rang last year as soon as the Senate confirmed Elena Kagan as the Supreme Court’s newest justice.Chief Justice John G. Roberts Jr. said he wanted to be the first to congratulate and welcome Kagan to the court, she recalled at a recent event at the Aspen Institute. And Roberts told her one other thing: that the two were going to be serving together for the next 25 years.“Only 25?” Kagan responded.
Indeed, 25 years does seem to be almost a baseline expectation these days. And in picking Gorsuch, Trump and Republicans hope their wager on the "over" will pay off.