The new politics of Supreme Court confirmations substantially affects the retirement calculus for justices. The elimination of the filibuster for Supreme Court nominations together with the much stronger possibility that a Senate controlled by one party will not confirm a Court nomination by the President of the other will change the date of many justices’ retirements.
Three objectives inform the retirement decisions of Supreme Court justices. First, justices would like to preserve their legacy and thus would prefer to be replaced by a justice like themselves. Second, most justices want to hand back the seat to a President of the party that appointed them. This is secondary to the first objective and when their judicial views diverge substantially from the party that appointed them, as it did in the cases of Justices Blackmun, Stevens and Souter, they will resign during the Presidency of the other party. Third, they want to resign at a time when it will not cause institutional damage to the Court or inconvenience to their colleagues.
The death of the filibuster and the possibility of a blockade generally makes it much easier to meet these objectives if the President and the Senate are controlled by the same party. First, the blockade can leave the Court short staffed, inconveniencing their colleagues. More importantly, the standoff between the President and Senate places the Court in a partisan cross-fire, harming its legitimacy.
In contrast, the absence of a filibuster gives a free hand to the party that appointed the justice if he resigns during a period of unified control of the Senate and Presidency by that party.