Amber Philips at The Washington Post is so clever! Suppose, she writes, that “another spot opened up on the court between now and November — especially one of the liberal spots. Suddenly, instead of replacing a conservative with a moderate, Republicans can replace a liberal with a moderate. And wait until they (ostensibly) win November’s election to fill Scalia’s spot”[a]. That’s not a crazy theory, not at all!
And it’s not as unlikely as I first thought. I doubt that any of the current Supreme Court liberals is likely to go voluntarily unless he/she thinks he/she can be replaced with someone of a similar political disposition. I believe that the only way we’d see a liberal leave under the current state of things is via disease, injury, or death (God forbid). Justice Sotomayor was born in 1954 (probability of death in next 12 months = 0.007602), and Justice Kagan was born 6 years later (probability of death in next 12 months = 0.004920). So the probability that either will die before the next president is sworn in is almost 0, out to 2 decimal places.
But this is where things get interesting (in a ghoulish way). Justice Breyer was born in 1938, and his probability of death in next 12 months is much higher – shockingly to me: 0.049664. And the Notorious RBG is 5 years older then Justice Breyer and thus has an expected mortality rate of 0.060909[b]. (I do not report this fact with relish. RBG is a national treasure.) So we’re looking at something like a probability of 0.123095 that at least 1 of the liberal justice will die in the next year. Adjust that for the fact that we’re only interest in the next 10 months for the purposes of this question, and we get a 0.10257916666 chance that at least 1 of the liberal justices will die before the next president is sworn in. For Pete’s sake, let’s just call this 10%. This could certainly happen. In fact, I think that it’s more likely that at least 1 of the liberal justices will die before the presidential election than that Senator Cruz will be the Republican nominee! When one adds to the mix the fact that I’ve only considered mortality rates and not the likelihood of other events that might cause a Justice to retire, it really begins to seem like we need to think hard about this possibility.
Despite all of this, I’m not as confident as Ms. Phillips that the Congressional Republicans would go for it. Senator McConnell has left himself a little wiggle room, I suppose. “[T]he American people are choosing their next president and their next president should pick this Supreme Court nominee”[c, my emphasis]. So Senator McConnell might claim, somehow, that President Obama should pick another Supreme Court nominee. But he doesn’t have much incentive to do so. If a Republican wins the White House in the fall, then that would mean two new conservative Justices, and if a Democrat wins, Senator McConnell and friends can continue to play keep away for a long time. After all, conservatives would outnumber liberals 4-to-3 on a court without 1 of its liberal current Justices.
So there’s something to Ms. Phillips’ suggestion, but I don’t think it fundamentally alters the state of the playing field. I’m bumping up my estimate of the likelihood that a new Supreme Court Justice will be approved by 1% to 29%, right where it started earlier this afternoon.
All actuarial data taken from https://www.ssa.gov/oact/STATS/table4c6.html