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Forget temperament -- what about judicial lifespan?


If you want to see the insanity of lifetime appointments for Supreme Court justices thrown into sharp relief, check out Nate Silver's model that builds the life expectancy of a judge into an overall assessment of his or her value.

In the model, he compares the more-liberal Diane Wood (age 59) to Elena Kagan (age 50). Assuming that Wood will vote to please liberals 100 percent of the time and Kagan will only be with them 90 percent of the time, Silver's model ranks Kagan as the winner:

Kagan overtakes Wood even though she’s less liberal, because she’s more likely to have survived. She continues to provide excess value over Kagan from that point forward, until we reach a period 40+ years out where both women are almost certain to be dead. On balance, Kagan’s lifetime expected [value] is actually higher than that of Kagan’s (1,280 rather than 1,206, if you care), assuming that she’ll defect from the liberals 10 percent of the time whereas Wood never will.

People don't, and shouldn't, think of judges in quite such stark terms. But that's because people don't like thinking this way. The actual system we've set up actually makes this sort of analysis the most logical way to think about Supreme Court appointments.

By Ezra Klein  |  May 12, 2010; 9:51 AM ET
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Given the differential impacts of each case, this analysis doesn't make sense to me. One major opinion could have more impact than 100 lesser ones, but this analysis seems to value them equally.

Posted by: jduptonma | May 12, 2010 10:04 AM | Report abuse

The trouble with this analysis is that it assumes today's appointment will be replaced down the road with someone of 0 value. If we thought the political environment at Kagan's or Wood's death would be identical to today's political environment, that would be a reasonable assumption, because the replacement would probably have about an equal chance of being nominated by a D or an R. But if we assume the political environment is likely to move a bit to the left -- hardly an unreasonable assumption given demographic factors and the fact that we are to the right of the rest of the world -- then Kagan's longer expected lifespan is less meaningful, because the replacement nominee is more likely to be left-friendly.

Another way of saying this is that I think more liberal-ness now is likely to be more valuable than some liberal-ness later.

Posted by: dal20402 | May 12, 2010 10:06 AM | Report abuse

In the Nate Silver passage you quote, he writes "Kagan" a couple of times when he clearly means "Woods", making the passage essentially gibberish.

Posted by: thehersch | May 12, 2010 10:27 AM | Report abuse

Er, Wood.

Posted by: thehersch | May 12, 2010 10:28 AM | Report abuse

Also, one would expect that any liberal nominee would be more likely to time their retirement for when there was a Democratic president. So I don't think the assumption that her replacement would be an average justice is very compelling.

Posted by: wcampb17 | May 12, 2010 10:34 AM | Report abuse

Given the differential impacts of each case, this analysis doesn't make sense to me. Ezra and Silver are just trying to calm liberals down by trying to make it seem that picking a real liberal isn't going to make a difference. Kinda like not letting on to the fact that HCR costs a extra 100 billion when they knew full well the CBO was full of it.

Posted by: obrier2 | May 12, 2010 10:39 AM | Report abuse

I find it hard to believe this model is precise enough to make a lifetime difference of 76 points (6%) particularly significant.

What might be more useful is a projection of high likely it is that Wood could not be confirmed, thereby yielding a value of 0.

Posted by: zimbar | May 12, 2010 10:39 AM | Report abuse

Given the nature of legal precedent, a good justice now is worth more than a good justice in the future. Current decisions constrain future actions; it's harder to dismantle bad precedents than it is to build on vacant land.

And even if you assume that the electoral balance will remain the same in the future, don't you have to assume that there's a better than 50% chance that the replacement will be as good as Kagan? Justices can time their retirements - if Kerry had been elected, O'Connor might not have retired, and Souter and Stevens might have done so earlier.

Also, it's not reasonable to assume that a justice will serve to death if death is past age 90. No one has ever served past 90, and most justices retire.

Posted by: Bloix | May 12, 2010 10:52 AM | Report abuse

this is silly to even attempt to do because there are so many other factors outside of everyone's control that can affect how long they serve.

How about God forbid if either of them develop cancer in the next 5 years?

Posted by: visionbrkr | May 12, 2010 11:08 AM | Report abuse

90% of the USSC decisions are non-controversial, so the real question is how would they both vote on the important 10% of the decisions. Life expectancy can't determine how Kagan would vote on the truly important, keystone decisions. It's possible she would vote with conservatives a majority of the time on the important decisions and Nate Silver's analysis could theoretically hold true even though it totally missed the point.

Posted by: Lomillialor | May 12, 2010 11:14 AM | Report abuse

Of course this is a silly exercise and absolutely filled with caveats and addendums. Silver doesn't take into account their relative health level, family histories of disease, etc.

The point is that lifetime appointments, all else being equal, make it more valuable to nominate someone you aren't 100% enthusiastic over someone you think would be great because a longer-living justice will hear more cases. It's an absurd way to think about the court, but it's what our current system encourages.

We'd be much better off with term-limited Justices, because it's much more likely that that would A) cool down the rancor surrounding the nomination process, and B) permit nominees to be considered more for their experience and legal acumen than their age.

Posted by: MosBen | May 12, 2010 11:29 AM | Report abuse

One the one hand, wisdom comes with age; on the other -- assuming a replacement would be with a justice of the opposite ideological bent -- a 30-year term will have far more impact on American jurisprudence than a 20-year term.

I would discount the wisdom gap from a 50-year old nominee to a 60-year old nominee and say that a president is much more likely to make a greater impact by nominating the 50-year old.

Presidents should and do think about age in determining who to nominate to the Supreme Court.

Posted by: MisterSavannah | May 12, 2010 11:40 AM | Report abuse

" The actual system we've set up actually makes this sort of analysis the most logical way to think about Supreme Court appointments."

OK junior.
If you're up to playing that game, examine the candidate's physique very closely. See that double triple chin? And the fact that earlier pictures show such a short frame? Note the father's death at 67. And childless women tend to die earlier.

Now, line her up next to the other woman candidate Diane Wood. Which one do we logically calculate will live longer, even though one has 8 or 9 years on the other?

(There's a reason you don't want to start playing these "logic" games, junior. All this effort trying to "game" the system; one quick coronary arrest, and all your calculating is for naught. Remember Harold Washington?)

Best to choose for the brightest, most experienced minds, and leave all this personal characteristics/demographics nonsense to the kiddo pundits trying to draw eyeballs to a dinosaur industry.

Posted by: Mary42 | May 12, 2010 11:41 AM | Report abuse

I'm not very concerned about the age of the Justices. I'm concerned about the capricious way seats on the Court open up. Nine Justices is a tradition not a constitutional requirement. Appoint a new Justice at the beginning of each Congressional session, every two years. After a while we'll end up with a couple dozen Justices. Bigger seems better here, less chance of a few Justices dominating the Court. Every President and Senator will have a similar impact on the Court, with a bit of randomness from health and attitude.

The Constitutional specifications for the Supreme Court are very brief. How about a Supreme Court made up of Appellate Judges drawn by lot every year or two?

Posted by: kellgo | May 12, 2010 12:01 PM | Report abuse



Didn't you the other day try to tell us that the court was overturning progressive laws already?

But now you're saying 90% are non controversial?

Well, which is it?

Posted by: visionbrkr | May 12, 2010 12:30 PM | Report abuse

40-50 years is a very long time for someone's view of the world to remain static.

This is an amusing game, but as others have said, life intervenes (illness, car accidents,??). If there's one thing the current gulf oil spill should teach us all, it's humility in trying to forsee the future.

Posted by: Beagle1 | May 12, 2010 2:36 PM | Report abuse

I just like VORJ. Can't wait for other metrics like OPC+ (Adjusted Opinions Plus Citations).

Really though, this is what inevitably happens when we have Supreme Court terms based on an unknown arbitrary number (healthy lifespan) rather than a known arbitrary number (say, 18 years).

Posted by: etdean1 | May 12, 2010 2:40 PM | Report abuse


One immediate problem with your idea is that there would be an even number of justices serving half of the time.

In order for your idea of the jumbo court to work at all, the appointments would need to be made two at a time to preserve an odd number of Justices to prevent tie votes.

Rather than do that, if you want to change the system at all, a fixed term of around 18 years seems to make the most sense.

I like most of Nate Silver's work, but as MosBen has pointed out, there are way too many unknown variables to make any meaningful prediction of how long any nominee might serve, and to me the whole idea of quantifying the value of ideological purity vs. longevity is just completely stupid, morbid, and undignified.

Posted by: Patrick_M | May 12, 2010 6:43 PM | Report abuse


If you use your brain long enough, you'll realize there isn't any inconsistency in my statements.

Posted by: Lomillialor | May 12, 2010 11:13 PM | Report abuse


don't you mean that "there AREN'T any inconsistencies in my statements" or "there isn't an inconsistency in my statement"

Ironic how you claim I don't use my brain and you then make an incoherent statement that my third grader would get an "F" on. Actually I'm sorry, she'd know better because she's NOT an idiot.

Posted by: visionbrkr | May 13, 2010 12:14 AM | Report abuse

"Ironic how you claim I don't use my brain and you then make an incoherent statement that my third grader would get an "F" on."

Although in fairness, visionbrkr, your child's grammar teacher would also want us all to avoid ending a sentence with a preposition.

Posted by: Patrick_M | May 13, 2010 12:20 AM | Report abuse

"don't you mean that "there AREN'T any inconsistencies in my statements" or "there isn't an inconsistency in my statement"

Am I wrong, or is not correct to say "there isn't any inconsistency in my statements" when then objection concerns a single inconsistency found between multiple statements?

If your complaint is about multiple inconsistencies, then inconsistency needs to be pluralized, but if it is just "an" inconsistency between two or more statements, then the grammar is correct.

And I have to agree that the two statements do not appear to be mutually exclusive in any way. Progressive laws might be the 10% being overturned, or they might be a a subset of the 10%, or they might be a larger percentage (but not always be controversial). Where is the incoherence?

It is tedious to argue about grammar on a blog, but since you brought it up....

Posted by: Patrick_M | May 13, 2010 12:32 AM | Report abuse


touche! I was an Econ major, not English though. And you may be right, Lomillalor may be right but I so like to give him a hard time. Especially since he's a FORMER Republican ;-)

Posted by: visionbrkr | May 13, 2010 7:45 AM | Report abuse


touche! I was an Econ major, not English though. And you may be right, Lomillalor may be right but I so like to give him a hard time. Especially since he's a FORMER Republican ;-)

Posted by: visionbrkr | May 13, 2010 7:48 AM | Report abuse

Actually, the reason that analysis seems very odd to me, is it doesn't account for effect of the court on society.

Whether you are liberal or conservative, you (I presume) believe your philosophy gets better results. The results of these Supreme Court decisions is measured, not just in the decisions, but in societies eventual appraisal of the results of those decisions.

Moving Society to the left requires moving those decisions to the left as well - and you only get that with a stronger liberal court, not a moderate with liberal impulses. Or to put it more bluntly, society is less racist now because the court forced us to not institutionalize racism, and we had the opportunity to review the results. We reached that tipping point because the court did enough heavy lifting to get us *to* the tipping point.

That 90% Liberal is *only* better than the 100% Liberal if you don't believe society is going to to review the changes and find them, in balance, an improvement.

Historically not the case. I would infinitely prefer the 100% liberal on the court, even if they lose arguments, making the arguments that prepare us for a more liberal, a *better* society, in 30 years, than the less liberal judge that hasn't laid the groundwork for a better society even in the extra ten years.

The Republicans, believing that a society based in conservative principles is a better society than one based in liberal principles, very much get this. And they appoint the most conservative judges to the bench they can get away with to make their points for them.


Posted by: Jonnan | May 13, 2010 4:29 PM | Report abuse

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