Why Ginsburg's Age Didn't Doom Her Candidacy

RBG’s debt to the twelve Reagan-Bush years

Ruth Bader Ginsburg turned sixty years old just four days before Justice Byron White announced his retirement in March 1993. Then as now, sixty was undesirably old for a Supreme Court candidate. Lewis F. Powell Jr. was 64 when Richard Nixon appointed him in 1971. But of the seven next new justices, the oldest (John Paul Stevens in 1975) was 55, and the average age of those seven justices at appointment was just under 50. In 1991, Clarence Thomas had joined the Court at the age of 43.

Why didn’t Ginsburg’s age doom her candidacy?

A large part of the answer is obviously that what President Clinton found compelling about Ginsburg weighed much more heavily with him than her age. Ginsburg had a remarkable legal career and an appealing life story. Having faced discrimination when she first entered the legal profession, she made her mark as a law professor and ACLU litigator on women’s rights and sex discrimination. Since 1980, she had served with distinction on the D.C. Circuit. Ginsburg aced Clinton’s litmus test on Roe v. Wade, and while Clinton did not set out with the specific intent to select a woman to replace White, he would have found it attractive to make history by being the first Democratic president to appoint a female justice.

Clinton also had ample reason to expect that Ginsburg would be confirmed easily on a broad bipartisan vote. My boss Orrin Hatch, senior Republican on the Senate Judiciary Committee, had assured Clinton in one-on-one conversations that he would support her. (Hatch didn’t single out Ginsburg. He told Clinton that he would also support various other sitting judges, including First Circuit judge Stephen Breyer, Eighth Circuit judge Richard Arnold, and federal district judge José Cabranes. If he had his choice among them, Hatch would probably have picked Cabranes.)

The word was also out that Justice Antonin Scalia held Ginsburg in very high regard from their time together on the D.C. Circuit. Scalia’s view would give lots of shelter to any Republican senators who wanted it. This anecdote from legal journalist Jeffrey Rosen spread widely:

“If you had to spend the rest of your life on a desert island with Laurence Tribe or Mario Cuomo, which would you choose?” Antonin Scalia was asked at a recent lunch with clerks at the federal courthouse in Washington. “Ruth Bader Ginsburg,” Scalia replied.

(I had witnessed Scalia’s esteem for Ginsburg in one of my first assignments as a law clerk for him: “I have learned not to care about unfair academic commentary in general,” he wrote her in eviscerating a shoddy attack from a pompous scholar, “but I do care about your regard for my precision and scholarship.”)

But there is a second part of the answer to the question why Ginsburg didn’t lose out to, say, a 50-year-old competitor: There were no 50-year-old federal appellate judges to compete with her—or, more precisely, none that a Democratic president would have any interest in.

Jimmy Carter appointed an impressive total of 56 federal appellate judges* during his single term as president. But twelve years had passed between the end of Carter’s presidency and the start of Clinton’s. That meant that most of Carter’s appointees were quite old: Eight had been born in the 1910s, twenty-eight in the 1920s, and nine more in the early 1930s, before Ginsburg’s birth in 1933. There were only ten Carter appellate judges younger than Ginsburg, and the three youngest turned 53 in 1993.

Over the past fifty years, fourteen of the sixteen newly appointed justices were plucked from a federal court of appeals. (The two exceptions were Sandra Day O’Connor in 1981 and Elena Kagan in 2010.) Given the penchant for nominating sitting federal appellate judges, it’s important to have in mind that a sitting president’s pool of attractive candidates will depend heavily on the federal appellate picks that the president’s same-party predecessors made and by how recently those picks were made.

Of course, a sitting president often also has his own appellate appointees in that pool and will be inclined to favor them. Scalia, Souter, Thomas, Roberts, Barrett, and Jackson were all appointed to the Court by the same president who put each on the court of appeals (though in Jackson’s case it was of course Barack Obama who first made her a federal district judge). But when a president has a Supreme Court vacancy to fill in his first six months in office, as Clinton did in 1993—and as Reagan did in 1981, Obama in 2009, and Trump in 2017—he likely won’t have any of his own appellate picks to draw on.

Let’s consider a counterfactual to illustrate the broader point: Imagine for a moment that Michael Dukakis had been elected president in 1988. He might well have appointed to the federal appellate courts between 1989 and 1992 some of the same judges that Clinton ended up appointing four years later. If there had been in 1993 a half dozen or so judges with the credentials and relative youth of Diane Wood (born in 1950), Karen Nelson Moore (1948), or Martha Craig Daughtrey (1942), how likely is it that Ginsburg would have been selected? Not very, I would think. (On the other hand, a President Dukakis might have picked Ginsburg for one of the two Supreme Court vacancies that would presumably have arisen in his first term.)

Developing Supreme Court candidates is a long-term process that often links same-party presidents over time. Donald Trump was able to appoint Neil Gorsuch and Brett Kavanaugh to the Supreme Court in 2017 and 2018, respectively, because George W. Bush won re-election in 2005 and appointed them to their federal appellate seats. Conversely and ironically, Ruth Bader Ginsburg might well owe her Supreme Court appointment in 1993 to the fact that Ronald Reagan and George H.W. Bush held the presidency for the twelve years between Jimmy Carter and Bill Clinton.

* The Federal Judicial Center database generates the incorrect number of 59, as it includes three judges whom Carter appointed to specialty courts (two to the Court of Claims and one to the Court of Customs and Patent Appeals) who were re-assigned by statute to the newly created Court of Appeals for the Federal Circuit in 1982.