This is one of those questions which remains, thankfully, still in the hypothetical category for the time being. None of the current justices on the Supreme Court have been making any serious noises about retirement, and some are going out of their way to squelch such rumors. Barring a tragedy which nobody wants to see, the staffing situation on the nation’s highest court appears stable for the moment. But there are still 27 months to go in the Obama presidency, and four of the current slate are beyond 70 years of age, some with medical issues. It’s not unrealistic to suppose that some of them may be considering their retirement years. But what options would be available to replace them?

The Chief Justice spoke on the subject this week and took a rather dim view of the current environment, expressing doubt that some of his colleagues could even make it to the bench today.

United States Chief Justice John Roberts told a Nebraska audience he worries the partisanship that grips Washington will spill over onto the Supreme Court.

Roberts said he’s concerned about the other two branches of government.

“They are not getting along very well these days,” Roberts said during a question and answer period at the Nebraska College of Law. “It’s a period of real partisan rancor that, I think, impedes their ability to carry out their functions”…

Roberts claimed that hasn’t always been the case, illustrating his point by focusing on the two Justices who represent perhaps the widest philosophical differences on the court.

“It’s not like it’s always been that way,” Roberts said. “Justice (Antonin) Scalia, I think, was confirmed unanimously. I think Justice (Ruth Bader) Ginsburg was confirmed unanimously. Neither one of them would have a chance today. And that doesn’t make any sense. That’s bad for the judiciary.”

As Doug Mataconis points out, Roberts’ confirmation math wasn’t exactly on point, but he was close. And it’s a valid observation.

Justice Scalia was indeed confirmed unanimously in a 98-0 vote, on the same day that then Associate Justice William Rehnquist was confirmed as Chief Justice of the United States by a 65-33 on September 17, 1986. Ginsburg, on the other hand, was confirmed in 1993 by a 96-3 vote, the three Senators voting against her being Jesse Helms, Don Nickles, and Bob Smith. Notwithstanding this, Roberts points remains basically correct. In today’s political environment it is highly unlikely that a Justice like Ginsburg or Scalia could get confirmed under current political condition.

Traditionally, and perhaps somewhat inappropriately given their importance, confirmations of Supreme Court Justices tended to be somewhat non-controversial. For the most part, when a President named someone to the Supreme Court the Senate had generally acted as something of a rubber stamp in considering the nomination even if the Senate and the White House were controlled by different parties. Since 1789, of the 151 people nominated to the Supreme Court, only 29 have not actually been confirmed to the post and, of that 29, only 12 of those were actually considered by the Senate and rejected (source).

Some of Roberts’ other observations will likely stir a little controversy as well. “And how somebody as imminently qualified as our newest member, Justice (Elena) Kagan, is confirmed by almost a strict party-line vote. You think, well this must be a political entity, because they’re putting people on or rejecting them on partisan, political lines when that’s just not how it works,”

I’m assuming that the “imminently” in the last quote was just a transcription error somewhere along the line. But I’m not sure if he’s pining for a time that never was or if the question deserves more attention. Roberts himself was approved in a rather lopsided, but still not unanimous 78–22 roll call, where he received the support of a number of Democrats. Either way, the days of unanimous confirmations appear to be gone. Is this a good thing or a bad thing?

The older I get, the more I seem to settle into the unpopular view that the President should get a reasonable amount of leeway in his appointments no matter what you think about him. When a president is elected (and in some cases, reelected) then the people of the United States have expressed their opinion pretty much to the extent they are able in such matters. They vote for a chief executive with the knowledge that he or she will be able to nominate justices and holders of other key positions. But that doesn’t mean that the entire Advise and Consent role goes out the window. If a name is submitted and there is valid reason to question the person’s basic credentials, that needs to be addressed. But the days of people nominating vice presidents or troublesome political rivals to the bench seems to be long gone. Most of those who ever make it to the confirmation process will likely meet the basic bar, no matter how vigorously we disagree with their ideological leanings.

As usual, the answer is simple to explain but much harder to execute. If you want better Supreme Court justices, start nominating better presidential candidates and figuring out how to win elections.