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WHEN TO RETIRE? Volcanologists gravitate toward Sicily when Mt. Etna starts to rumble. Tornado chasers head to Kansas and Oklahoma during twister season. For the same reason, it makes sense that Artemus Ward has positioned himself in Washington these days. The phenomenon Ward awaits is a Supreme Court retirement, and he is guessing there will be one soon: Chief Justice William Rehnquist. Ward’s book Deciding to Leave: The Politics of Retirement from the United States Supreme Court was published earlier this year. As the title suggests, the book offers the most pervasively political � and cynical � analysis yet for why Supreme Court justices retire. Yes, health and the perennial desire to “spend time with the grandchildren” can be factors, he acknowledges. But because of increasingly generous retirement formulas, lightening workloads, and longer life expectancy, Ward posits, modern-day justices have decades within which to determine the precise time to retire. That wide window of opportunity, Ward argues, has inexorably led justices to focus ever more closely on the political question of which president will name their replacement. “The process now is entirely partisan,” says Ward, currently working on Capitol Hill through an American Political Science Association fellowship. “It is much easier now for justices to think strategically, and they have a huge window of time to play the political game.” Ward’s fellowship is with Rep. John Conyers (D-Mich.), working on House Judiciary Committee matters. Ward, 32, has been teaching at California State University, Chico, and plans to move to Northern Illinois University after his stint in Washington. The book began as his doctoral dissertation at Syracuse University. Ward’s book is not the first on the subject. David Atkinson’s Leaving the Bench in 1999 first catalogued the reasons for Court retirements, emphasizing health and aging. But Ward looks at the phenomenon through a more political and institutional lens. This leads him to the view that 1954 was a pivotal date in the story of high court retirements. That was when Congress passed a law allowing federal judges to retire at full pay at age 70 with 10 years of judicial service or at 65 with 15 years of judicial service. The so-called Rule of 80 means, for example, that Justice Stephen Breyer will be eligible to retire at full pay this August, when he turns 65, and John Paul Stevens could have retired as early as 1985. In fact, by year’s end, all of the justices except David Souter and Clarence Thomas could retire without losing pay. Souter reaches that point in 2005, and Thomas in 2013. Congress first enacted relatively generous retirement benefits in the mid-1800s to encourage justices to leave, rather than hang on beyond the point of infirmity for financial reasons. But now, as Ward sees it, the retirement benefits have the effect of allowing justices to prolong their tenure for political reasons. Since the 1954 retirement law passed, Ward says, all but two departing justices have retired at a time of their own choosing. Arthur Goldberg resigned to become United Nations ambassador, and Abe Fortas resigned under an ethical cloud. The last justice to die in office was Robert Jackson, in 1954. As retirement terms sweetened, Ward notes, the workload of the high court has also lightened � in recent years, the justices have issued fewer than 100 rulings per term, and they increasingly rely on law clerks to screen cases and write opinions. “Why retire to a comfortable life when you already have a comfortable life?” asks Ward. “As the caseload decreases, partisanship increases as a factor in retirement.” Ward thinks all the retirements of the past three decades have been timed for partisan reasons. He points to Lewis Powell Jr., whose former law clerk John Jeffries Jr. wrote him a memorandum in 1987 laying out the political as well as personal factors Powell should weigh. Powell announced his retirement a few days later, thereby avoiding the 1988 presidential political season. Viewed this way, Ward thinks it is an easy call to predict that the conservative Rehnquist will announce his retirement in the next month, faced with the likelihood that the next opportune moment might not come for two more years, when the occupant of the White House could conceivably be a Democrat. And why won’t there be a second retirement at the same time, such as that of Sandra Day O’Connor? Ward invokes another unwritten rule � the Rule of Eight � under which justices seek to avoid more than one departure in the same term, so that the number of sitting justices never dips below eight. The last exception to the rule came in 1971, when John Harlan II and Hugo Black retired within a week of each other, mainly for health reasons. The Rule of Eight presupposes that justices check with each other on their retirement plans, an assumption some Court-watchers doubt. But Ward asserts that Rehnquist and O’Connor, who have known each other since Stanford Law School days, are likely to be aware of each other’s plans. Especially with the bitterly political confirmation process currently in place, should Rehnquist leave, Ward thinks, it is unlikely O’Connor will gamble that her replacement could also be confirmed by the beginning of the fall term. “Justices read the papers. They know about this stuff,” insists Ward. “Judges are political actors.” Ward offers fairly draconian remedies for the politicization of high court retirements. He urges Congress to revise the Rule of 80 upward to 100 � meaning that justices could retire at full pay only after their age plus years of judicial service total 100. That would significantly reduce the window in which the justices could time their retirements for partisan reasons. Alternatively, Ward thinks a mandatory retirement age of 75 should be considered. That would take politics out of the equation altogether and, in a sense, enhance judicial independence, in Ward’s view. Those who oppose mandatory retirement point to the later-life contributions of justices like Oliver Wendell Holmes, who served on the Court until age 90. Ward has a ready and controversial answer. “Holmes was one thing. The Court would have lost a great legal mind if he had left at 74,” says Ward. “But now, would we be losing great legal minds, when justices now are really technocrats and they don’t write their own opinions? I don’t think so.” THOMAS ON DIVERSITY In her new book, The Majesty of the Law, and in other writings, Justice Sandra Day O’Connor pays tribute to the powerful influence of Justice Thurgood Marshall as a storyteller within the Court itself. By recounting to his fellow justices story after story of his upbringing and his travails as a civil rights lawyer in the South, O’Connor says, Marshall was “pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.” If Marshall’s successor, Clarence Thomas, has anything near the same influence over his other eight colleagues, then affirmative action is sunk. In a revealing talk before an audience of mostly black students at Banneker High School in D.C. on May 20, Thomas offered deeply personal and powerful testimony against the importance of racial diversity as a justification for affirmative action. His speech was aired on C-SPAN as part of its “Students and Leaders” program, co-sponsored by the Comcast Corp. Asked by a student about alternatives to affirmative action policies enacted in Texas and elsewhere, Thomas seemed reluctant to respond because the University of Michigan affirmative action cases, Grutter v. Bollinger and Gratz v. Bollinger, are pending before the Court. But Thomas said, “We all have our own reference points.” He paused, and holding his arms out, said, “I am the diversity in my high school.” He was the only African-American in his Roman Catholic high school class in Savannah, Ga., he explained, and as an undergraduate at Holy Cross College he was one of only six black students. But then he asked his audience, “Do you all think you got a good education?” Yes, came the collective answer from the students before him. “How much diversity do we have here?” Thomas asked, and there was laughter from the almost exclusively black and Hispanic group of students. Thomas then asked how much diversity of dreams, ideas, and aspirations there was in the audience. A lot, was the answer. “You have as much diversity as there can be” in all the ways that are “relevant,” Thomas said. His point was clear: Minority students can be well-educated without racial diversity, so long as there is diversity of ideas. Racial diversity is an irrelevant goal, he came very close to saying. As if addressing the affirmative action advocates he supposed were in the audience, Thomas continued, “Are you telling me you all can’t learn with the people in this room? You know you can.” On a roll, Thomas went on to talk about all the diversity he found growing up whenever he went to get his hair cut at black neighborhood barber shops. “There was the cool dude coming through, selling something,” said Thomas, as well as “the numbers runner,” but many others who came in to talk politics, sometimes staying for hours. “That’s diversity!” Thomas said. The students seemed deeply engaged by Thomas, who proved once again that he is incapable of giving a dull speech. He moved around, gesturing often and colloquially asking, “See what I mean?” at every turn. He constantly urged students to work hard and expect a lot of themselves, advising them to read books by Dr. Ben Carson, an African-American who overcame obstacles through faith and hard work to become a top neurosurgeon. Asked how it felt to succeed Thurgood Marshall, Thomas recalled meeting Marshall for the first time during a courtesy call after his nomination. A session that was scheduled to last 10 minutes turned into “the most delightful two and a half hours,” Thomas recalled. PAY AND TV In 1989, Chief Justice William Rehnquist presided over his first press conference to highlight the need for increasing the salaries of federal judges. The ground rule for the media then was that all questions had to pertain to the salary issue. But that did not deter the mischievous Tim O’Brien, then of ABC News, who asked whether the public might not have more sympathy for raising judicial pay if the work of the courts was better known � by allowing cameras inside federal courtrooms. Rehnquist smiled at O’Brien’s gambit, replying, “I admit you’ve taken a very clever way of bringing in another subject. Perhaps they could be.” Fast forward to last week, and Rehnquist’s third press conference � at least � on the same subject. The occasion for the event was the presentation to Rehnquist of a report on the pay issue by the American Bar Association and the Federal Bar Association. It was well-timed, because the Senate Judiciary Committee on May 22 approved S. 1023, which would give a 16.5 percent raise to federal judges. The bill, introduced by Sen. Orrin Hatch (R-Utah) with bipartisan support, needed a high-profile boost from the Supreme Court. But as if to echo O’Brien’s question of 14 years ago, the issues of judicial pay and cameras in the court are now linked as the salary bill heads to the Senate floor. At the urging of Sen. Charles Schumer (D-N.Y.), S. 1023 has been combined with S. 554, which would allow the presiding judges of all federal courts, including the Supreme Court, to authorize camera access to their proceedings. The camera bill was also approved by the Judiciary Committee May 22. So when Rehnquist invited questions from the press May 28, it was inevitable that a question would come about the linkage between judicial pay and cameras in the courts. This time, David Pike of the Los Angeles Daily Journal did the asking. But this time, instead of answering, Rehnquist backed away from the microphone and let ABA President A.P. Carlton Jr. handle the question. In his response and in later remarks, Carlton said he would like to see a “cleaner presentation” of the pay issue by itself, unencumbered by the issue of cameras, still unpopular with many federal judges and most of the Supreme Court. “The pay issue is what we need to focus on,” said Carlton, though he acknowledged that, at least for appellate courts, the ABA has endorsed the concept of cameras in the courts. The legislation faces other obstacles, in part because, for the first time, it de-links judicial salary increases from those of Congress itself � meaning that in the future, when members of Congress want to give themselves raises, they will not have the judiciary alongside them to share the heat. The May 28 press conference was especially unusual because Rehnquist was joined in answering questions by Justices Anthony Kennedy, David Souter, and Stephen Breyer � the first multijustice press conference in recent memory, if not ever. The other justices offered their own thoughts on the salary issue. Breyer said that with the current salary structure, the judiciary will continue to attract the wealthy, the “saints,” and judges from lower federal or state courts. But the “sound, sensible types” who help diversify the judiciary, Breyer said, are less willing to make the financial sacrifice. Souter recounted a recent conversation with an acquaintance who was being considered for a district court opening. When the unnamed individual asked Souter for his thoughts, Souter asked, “Tell me how you’re going to educate your kids. “That was the end of the conversation,” Souter said. Rehnquist said he personally did not feel he had made a huge sacrifice by staying on the Court, though he added, with a laugh, “I’m not taking three-month vacations in Europe, and I have not spent thousands and thousands of dollars educating my children.” Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times. “Courtside” appears every other week. Mauro can be reached at [email protected].

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