As Sonia Sotomayor glides towards confirmation to the Supreme Court, a fascinating graphic from Nick Summers in this week’s Newsweek highlights the history of each of the nine seats on the top court. As the Newsweek chart shows, there have been only 98 Associate Justices and 17 Chief Justices since the first court convened in 1789 with John Jay sitting as Chief Justice. The reason this club has stayed so exclusive through history is of course the position’s lifetime appointment. The average tenure of a Supreme Court judge has been 15 years over its history, and that number has grown in the Court’s more recent history to well over 20 years.
With a President’s legacy so influenced by the tenure of their Supreme Court appointees, we might expect every President to put a potential nominees youth at the top of its qualifications checklist. And the correlation of a Justice’s age at appointment and their length of service has certainly proven very strong. As the Newsweek graphic illustrates, there have been 25 justices that have served more than 25 years on the bench. At the same time there have also been 17 Justices who were over age 60 when they were appointed. Only one Justice fell into both categories, Oliver Wendell Holmes, who was appointed by President Teddy Roosevelt at age 61 and managed to serve nearly 30 years on the bench before retiring at age 90.
But of course there are many other factors to consider in a potential nominee besides youth–prime among them the hope that the nominee will ultimately share the President’s ideology and values and that he or she will vote accordingly while on the bench. But making the correct choice is anything but an exact science, and, as a result, successfully appointing a long-serving Justice can backfire when that choice fails to live up to expectations.
Case in point: David Souter, whom Sotomayor hopes to replace on the seat first held by James Wilson in 1789. Among conservatives, Souter is the poster child for failed Republican appointments to the bench (though liberal John Paul Stevens, age 89 and still sitting on the bench since being appointed by Gerald Ford in 1975, would give him a run for his money). Since his appointment by George H.W. Bush in 1990, Souter has proven a bitter disappointment to Conservatives. Since Souter replaced Justice William Brennan, a liberal icon also appointed by a Republican president, this seat may seem cursed to conservatives. With Souter’s retirement falling under Obama’s watch, and the subsequent nomination of Sotomayor, only an out-of-left-field streak of conservatism by Sotomayor will keep this seat from staying in the liberal’s corner. At least this time, however, conservatives will see this one coming.