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Is Obama Too Old for Supreme Court?

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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If Hillary Clinton wins the White House next year, should Barack Obama be her first Supreme Court pick?

The idea was suggested by Washington Monthly’s Steven Waldman. Here's Ed Kilgore's response:

Obama was, of course, a constitutional law professor, and there’s plenty of precedent for former pols being appointed to the High Court (Charles Evans Hughes, Hugo Black, Earl Warren, James Byrnes, and of course former president William Howard Taft, all being twentieth-century precedents). The average age of newly appointed Supreme Court justices is 53; Obama will be 55 upon leaving office.

The political scientist Jonathan Ladd made a good point on Twitter: “His age alone wouldn't disqualify him. But I think no rational president would nominate a smoker to the court.”

As far as I know, no president has demanded evidence of good physical health of any Supreme Court nominee. But it wouldn't be surprising if they did. In fact, failure to do so seems almost negligent.

The truth is that the strong partisan polarization on the Supreme Court and the rise of constitutional hardball (and, for that matter, of statutory interpretation hardball), mean there are only two critical criteria for nominations: partisan reliability and likely longevity. 

Should the considerations for Supreme Court selections be that narrow? Probably not, though it’s also true that the court is a political body and always has been. And there is nothing any president could do in the foreseeable future to change that.

Now, that may be a good reason to support term limits for Supreme Court justices (I’m ambivalent about the proposal for staggered 18 year terms). Or perhaps it’s just something we have to live with until something changes somehow -- less partisan polarization in our politics, fewer important issues before the courts? Neither seems likely. 

Until then? We're likely to get younger and younger new justices. The trend is already in place with selections by Obama and George W. Bush, which means Obama would be on the old side even for an immediate vacancy. And Hillary Clinton (or any Republican who beats her in 2016) better wheel out the MRI and "the machine that goes ping" (see below) before making any appointments to the high court. Otherwise, the new president is not going to be doing what he or she was nominated to do.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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Jonathan Bernstein at jbernstein62@bloomberg.net

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Max Berley at mberley@bloomberg.net