Washington (AP) – Need help: respected liberal lawyer. Black. Female. The elderly do not need to be treated.
The search for President Joe Biden’s candidate for the Supreme Court is not limited to authority, race and gender. The reality for the country’s oldest president – and for any president – is that young people are especially valued for a lifelong appointment to the country’s highest court.
It’s simple math. The younger Biden’s candidate, the longer she will serve as a judge. The longer she serves as a judge, the longer liberals can count on taking a seat in a court where 6-3 conservatives now dominate.
While a candidate’s experience, academic and work credentials may be most important in selection, for 79-year-old Biden it is clearly important how long a person can serve, in that it may well be his only chance to nominate a judge.
“The younger is considered the best, but not so young that you don’t have a track record,” said Boyden Gray, a White House adviser to former President George W. Bush. And the issue of age extends to the nomination of federal judges at all levels, he said.
The most important thing in the Supreme Court may be age. It is often said that presidential elections are one of the strongest legacies, and recent judges have served 25 years or more. Retired judge Stephen Breyer, nominated by President Bill Clinton at age 55, is retiring at age 83.
Balancing age and experience, recent presidents have chosen candidates between the 40s and 50s, with 60 generally seen as the top range. All three of Biden’s most talked about potential candidates are in this age window, but there is a decade between the youngest and the oldest.
California Supreme Court Justice Leandra Krueger is 45 years old, and South Carolina Federal Judge J. Michelle Childs – 55. Among them is Washington, DC, a judge of the Federal Court of Appeal of Ketanji Brown Jackson, 51 years old.
On Tuesday, the Fix the Court transparency group wrote on Twitter that Republicans are pushing Childs to the seat, “in part because she is the oldest of the potential candidates and is more likely to die sooner.” The group then expressed support for 18-year service life restrictions, which would make age less of a factor.
Breyer’s candidate for Clinton Ruth Bader Ginzburg was nominated at age 60 and served until her death in 2020 at age 87.
“Some thought I was too old for this job” Said Ginzburg in 2019 at an event with Clinton. Noting that she was starting her 27th year on the court, she told the former president, “If you were worried about my age, it was unnecessary.”
“I was worried about it,” the Democrat said, describing age as a “serious problem.”
Concerns about the candidate’s potential longevity cross party lines. In 1991, when Judge Turgud Marshall announced his retirement at the age of 82, then-President George W. Bush said he would look for a candidate who “believed in the United States Constitution” and “someone who could serve for a time.”
He chose Clarence Thomas, who was then 43 years old. No candidate has been younger since then. Last year Thomas celebrated 30 years on the bench. The youngest candidate for the Supreme Court was 32-year-old Joseph Story, who came to court in 1812 and worked for more than 30 years.
Former President Donald Trump also selected young nominees. Neil Gorsach was the youngest in a quarter of a century when he was 49 years old. He was followed by Brett Cavanaugh, then 53, and Amy Connie Barrett, then 48. The other members of the court – Chief Justice John Roberts, Judge Alena Kagan, Judge Sonia Satamayor and Judge Samuel Alita – were nominated at 50, 50, 54th and 55th place respectively.
Knowing that in 2016 he faced a tough fight for confirmation to replace Conservative Judge Antonina Scalia, who died unexpectedly, President Barack Obama chose a moderate who was also older. Merrick Garland was 63 years old. However, Republicans who control the Senate have refused to hold hearings against Garland, now Attorney General Biden.
For Biden, age can be especially important. Although Trump has appointed three judges, Biden is unlikely to be able to leave the same imprint on the court, even if he runs and wins a second term. After Breyer, the two oldest members of the court, Thomas, 73, and Alita, 71, are unlikely to resign during the Democratic administration. The remaining liberals of the court, Satamayoru and Kagan, are 67 and 61, respectively, and they can serve at least ten years or more.
When Biden decides who to nominate, he will weigh several factors: the records of the candidates, the Ivy League against education in public schools, the prosecutor or the lawyer.
“I think younger age is certainly a factor, and rightly so, but not the only factor,” said Sen. Richard Blumenthal, a Democrat on the Justice Committee and one of the senators who met with Biden on the nomination.
Biden himself acknowledged the role that age can play. In a 2010 interview as vice president defending Obama Kagan’s election, he brushed aside criticism that the president had chosen another Harvard graduate, noting that she was then the administration’s chief attorney for the Supreme Court.
He described her as “ready, willing, capable” and adding another key quality: “the right age”.
Associated Press authors Mark Sherman and Mary Claire Jalonik contributed to this report.