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Liberals Want Justice Ginsburg To Resign Before 2012 Elections?

Via Ann Althouse comes an interesting story from today’s New York Times about some on the left who worry about a “nightmare scenario” if Justice Ruth Bader Ginsburg doesn’t retire before the 2012 elections:

Democrats and liberals have a nightmare vision of the Supreme Court’s future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg’s successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

But Ginsburg could retire now and allow Obama to name a like-minded successor whose confirmation would be in the hands of a Democratic-controlled Senate. “She has in her power the ability to prevent a real shift in the balance of power on the court,” said Erwin Chemerinsky, dean of the University of California at Irvine law school. “On the other hand, there’s the personal. How do you decide to leave the United States Supreme Court?”

(…)

Some on the left say that the focus on the personal is misplaced. Ginsburg needs to put self-interest aside and act for the good of the issues they believe in, Harvard law professor Randall Kennedy wrote recently. Kennedy said 72-year-old Justice Stephen Breyer should leave, too.

Too much is at stake and both life and politics are too fickle to take the risk that everything will work out as the justices desire, Kennedy said.

David Garrow, a Cambridge University historian who follows the court, said Ginsburg’s situation points to an institutional problem for the court, “the arguably narcissistic attitude that longer is better.”

The longest-serving justice, William Douglas, was on the court for more than 36 1/2 years, reluctant to retire even after a debilitating stroke. “History teaches us that often longer is not better,” Garrow said.

The difference, of course, is that Justice Douglas suffered a stroke in 1974 which severely limited his ability to participate in Court business, something which he refused to recognize and which caused his fellow Justices at the time to delay hearings and the consideration of cases in order to stop Douglas from ruling while clearly incapacitated. Douglas finally retired in late 1975 but, even after that, continued to show up at the Court, file opinions, and even once attempting to sit in on oral argument in a death penalty case. (Source here)  He was, in other words, severely disabled and not able to function as a Supreme Court Justice.

There’s no similar situation here. Although Ginsburg was treated for cancer several years ago, she appears to have recovered quite well. What these people are asking, though, is for Ginsburg to step aside “for the good of the movement” because they’re afraid that President Obama will lose in 2012 and Ginsburg, who is 78, will step down, either voluntarily or by necessity, and give the GOP a chance to truly alter the direction of the Court. There are two flaws with this argument.

First, even if Ginsburg stepped down today it’s highly unlikely that President Obama would be successful in getting a nominee as ideologically to the left as her on the Court to replace her. Even before the 2010 elections, when Democrats had a near filibuster proof majority, Obama appointed two Justice who, while they are certainly liberal, did not have the record on issues like abortion rights that Ginsburg had before she was appointed by President Clinton. Now, with the Democratic majority in the Senate reduced significantly and elections only16 months away, the odds are that any Supreme Court confirmation would be a political battle royal, and that the President would likely select someone far more moderate than Ginsburg (or even Sotomayor or Kagan) to replace her. The people calling on Ginsburg to resign now are off by a year at least. If they’d done this in 2009 or 2010, it would’ve made a lot more sense.

Second, I see no reason why Ginsburg should sacrifice herself to a movement just because a bunch of law professors think she should. If she’s still able to do the job, enjoys doing it, and believes she has something to contribute to the Court, then why shouldn’t she? The attitude these people are displaying seems to be rather callous when you think about it.

It’s all academic anyway, because Ginsburg has made clear that she’s not going anywhere.

There are few more indelicate questions to put to a Supreme Court justice, but Ginsburg has said gracefully, and with apparent good humor, that the president should not expect a retirement letter before 2015.

She will turn 82 that year, the same age Justice Louis Brandeis was when he left the court in 1939. Ginsburg, who is Jewish, has said she wants to emulate the court’s first Jewish justice.

While declining an interview on the topic, Ginsburg pointed in a note to The Associated Press to another marker she has laid down, that she is awaiting the end of a traveling art exhibition that includes a painting that usually hangs in her office by the German emigre Josef Albers.

“Couldn’t think of leaving until after it is returned to me, which won’t be anytime soon,” she wrote.

She said much the same thing last year, and has also said that she has no plans to leave the Court before the 2012 elections.

Practically speaking, the fact that no Justices retired at the end of the just concluded term likely means that we won’t see another Supreme Court confirmation until 2013 unless someone is forced to step down for medical reasons, or dies. Supreme Court Justices are politically astute enough to know that a Supreme Court retirement the summer before a Presidential election would not be dealt with until after a new President takes office, largely because Republicans would seek to delay the hearings until after the election (frankly, I don’t think I’d object to that).

In any event, the issue of Supreme Court appointments should be of concern in 2012 because it’s highly likely that whoever takes the Oath of Office on January 20, 2013 will have a chance to appoint one or more justices based solely on the fact that several Justices are getting up there in years:

  • Ruth Bader Ginsburg — 78 years old
  • Antonin Scalia — 75 years old
  • Anthony Kennedy — 74 years old (75 as of July 23rd)
  • Stephen Breyer — 73 years old
  • Clarence Thomas — 63 years old
  • Samuel Alito — 61 years old
  • Sonia Sotomayor — 57 years old
  • John Roberts — 56 years old
  • Elena Kagan — 51 years old

Over the course of four years, we could see 2-3 retirements, all of which would be game changers.

 

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Jay Tea says:

    Well, she has been known to fall asleep during court sessions, so there’s at least a bit of an argument about why she should retire…

    J.

    Like or Dislike: Thumb up 1 Thumb down 0

  2. James Joyner says:

    I’m sympathetic to the argument that elderly judges should retire when their guy controls the White House but, as you note in the post, the dynamics are such that it’s very difficult to get a liberal judge on the court right now.

    Looking at the age chart, Clarence Thomas really stands out. He’s the median justice in terms of age, despite having been on the Court for two decades. Indeed, he’s barely older than Alito and Sotomayor, both of whom are relatively recent appointees.

    Like or Dislike: Thumb up 1 Thumb down 0

  3. James,

    Remember, Thomas was all of 43 years old when GHWB appointed him. I’m fairly certain that made him one of the youngest Supreme Court nominees in history, if not the youngest

    Like or Dislike: Thumb up 0 Thumb down 0

  4. Lit3Bolt says:

    The only reason judges were given life terms was the legal fiction that the judiciary was non-political. Like corporate “personhood” and campaign donations, this legal fiction has bizarrely morphed into an article of faith unquestioned by either party who are self-interested in abusing such power.

    If another Bush v. Gore decision comes along, I’ll expect a real national debate to occur about life appointments to the bench. But considering such a decision would require a Constitutional amendment, we probably shouldn’t look for it within our lifetimes.

    Like or Dislike: Thumb up 1 Thumb down 0

  5. Idea: eliminate “Supreme Court Justices” entirely.

    Each year, nine appeals court justices will be randomly selected to serve as the Supreme Court for that year. An additional group of nine appeals justices will be selected as a review panel to chose the cases that will be reviewed in the next term (which they most do without knowing beforehand who is going to be selected to actually hear those cases). That is, the 2011 review panel choses the cases for the 2012 court session; the 2012 review panel chooses the cases for the 2013 court session; etc.

    Like or Dislike: Thumb up 4 Thumb down 2

  6. Tsar Nicholas II says:

    Obviously our friends on the left are getting a wee bit nervous about Rambobama’s chances next fall. Of course if the shoe were on the other foot they’d scream bloody murder at the notion of a weak and vulnerable Republican president getting an opportunity before a potential lost election cycle to exchange a young conservative justice for an old conservative justice. This should not surprise anyone. Intellectual honesty and consistency is not the left’s forte.

    On a related topic, what’s most interesting about next year’s election is that the winner might have the opportunity to seat at least 3 and as perhaps even 4 justices. Ginsburg, Kennedy, Scalia, Breyer; they’re all getting up there in age.

    If the GOP nominee wins, and even presuming they botch a pick or two (a la Reagan and H.W. Bush), we’re looking at the prospect of a solid conservative majority on the SCOTUS for perhaps a decade or more. If Rambobama wins, however, the SCOTUS is all but guaranteed not only to become a Moonbat farce of a tribunal but to remain a Moonbat farce of a tribunal until well after the next Census.

    Like or Dislike: Thumb up 4 Thumb down 8

  7. Bill Jempty says:

    Well, she has been known to fall asleep during court sessions, so there’s at least a bit of an argument about why she should retire…

    The falling asleep reports stem from 5 years ago. More recently, she fell asleep during Obama’s State of the Union.

    I fell asleep during the final round of the 1998 Masters. So I can’t be a golf nut because of that.

    Like or Dislike: Thumb up 2 Thumb down 0

  8. An Interested Party says:

    Intellectual honesty and consistency is not the left’s forte.

    Please…as if we wouldn’t be seeing the same worries from some conservatives if all the roles were reversed…

    A solid conservative majority or a Moonbat farce of a tribunal…good gravy, what a choice!!!!

    Like or Dislike: Thumb up 0 Thumb down 1

  9. borderraven says:

    Eligibility Quiz of Barack Hussein Obama II

    Was Barack Hussein Obama II born subject to the Constitution of the United States? YES

    Does Constitution of the United States Article 6 bind treaties? YES

    Was the British Treaty of 1952 signed by President Truman in 1951? YES

    Was his father a British citizen with a visa, in the US under treaty, and represented by a foreign consulate? YES

    Did the British Nationality Act of 1948 apply to Barack Hussein Obama II’s birth? YES

    Did the Kenya Independence and 1963 Kenya Constitution affect Barack Hussein Obama II? YES

    Would the British Nationality Act of 1948 or Kenya Constitution apply if he was born in United States to two United States citizens? NO

    Is Barack Hussein Obama II an Article 2 Section 1 natural born citizen? NO

    Does Barack Hussein Obama II need the 14th Amendment to prove his citizenship? Yes

    Is Barack Hussein Obama II eligible to be a US President? NO

    Like or Dislike: Thumb up 3 Thumb down 13

  10. OzarkHillbilly says:

    Each year, nine appeals court justices will be randomly selected to serve as the Supreme Court for that year. An additional group of nine appeals justices will be selected as a review panel to chose the cases that will be reviewed in the next term (which they most do without knowing beforehand who is going to be selected to actually hear those cases).

    Ya know, I actually kinda like that idea. I would like to see it fleshed out by a couple of constitutional lawyers but on a gut level….

    Yeah. I like it.

    Like or Dislike: Thumb up 1 Thumb down 0

  11. Jay Tea says:

    I’ve toyed with the idea of a non-lawyer on the bench. Could be interesting…

    J.

    Like or Dislike: Thumb up 1 Thumb down 1

  12. Andre Kenji says:

    In Brazil there is the mandatory retirement for Supreme Court Justices at age of 70. The result is that Lula had almost all the Supreme Court appointed by him. :-)

    Like or Dislike: Thumb up 0 Thumb down 0