Outside the Beltway

Liberals Still Think They Can Guilt Trip Ruth Bader Ginsburg Into Retirement

Some people on the left are still trying to convince Ruth Bader Ginsburg that she needs to just step out on the ice floe already.

Doug Mataconis · Wednesday, July 9, 2014 · 15 comments

With the end of another Supreme Court term and the growing possibility that Republicans will gain control of the Senate in November, and possibly even the Presidency in 2016, people on the left are once again fretting over the fact that Associate Justice Ruth Bader Ginsburg is not retiring:

Supreme Court Justice Ruth Bader Ginsburg might be a hero of the left, but liberals are beginning to question whether it’s time for her to go.

Their rationale is that the court’s oldest member, who at 81 has battled colon and pancreatic cancer, should strongly consider announcing her retirement sooner rather than later to give President Obama a chance to nominate her successor while Democrats still control the Senate.

And with the election-year clock ticking, liberals say time is running out for Ginsburg to make a decision before it could become even more difficult for Senate Majority Leader Harry Reid (D-Nev.) to confirm a nominee who shares her legal values.

“There’s a real chance the Republicans are going to take the Senate,” said Erwin Chemerinsky, dean of the law school at the University of California, Irvine. “If the Republicans take the Senate, then the ability of President Obama to get a nominee confirmed for the court is going to be much more limited.

“When the Senate is the same political party as the president, the president virtually always gets who the president wants confirmed,” he added.

Ginsburg is the court’s strongest liberal voice, something she demonstrated again last week when she delivered a blistering 35-page dissent to its ruling in Burwell v. Hobby Lobby Stores, where the conservative bloc dealt a blow to ObamaCare’s contraception mandate.

While she is a prized justice, some liberals fear her health could take a sudden downturn and leave Obama with limited choices to replace her if Republicans control the Senate and the confirmation process.

“There are a lot of people who think that Ginsburg should resign so that Obama could appoint someone new and should do it sooner rather than later,” said Mike Lux, a Democratic strategist who declined to say whether he thinks Ginsburg should step down.

Elias Isquith, an assistant editor at the liberal website Salon, wrote that Ginsburg’s Hobby Lobby dissent would be a fitting capstone to her career.

“The celebrations of her brilliance fail to recognize that the best thing Ruth Bader Ginsburg could do for the liberal movement right now is, arguably, to call an end to a sterling and trailblazing legal career and step down from the court,” he wrote.

With Republicans in a strong position to pick up the six Senate seats they need to win control of the upper chamber, any court vacancy would shift the November election’s political dynamics.

This isn’t the first time, of course, that there has been talk in the media about whether or not Justice Ginsburg would resign in time to allow President Obama to replace her, and outright calls from pundits and commentators on the left for her to do so in tones that have been, quite often, utterly disrespectful to someone of her achievements. Just since 2010, we’ve written about the issue six separate times here at OTB — here, here, here, here, here, and here — and that likely does not count all of the times that the matter has been discussed in the media and one of us has chosen not to write about it yet again. For the most part, the arguments are all the same, though. Ginsburg’s status as the liberal stalwart of the Court, they claim, places her in some special position where she ought to put her personal desires to the side and do what is good for “the movement” or “women’s rights” or the Democratic Party, or whoever you want to phrase it. By not retiring when she knows President Obama still has time to name a replacement that would have an at least conceivably easy course through confirmation, she’s risking the possibility that he won’t be able to nominate who can be confirmed at all, that he’ll have to settle for some moderate, or that she may end up seeing her replacement picked by a Republican President.

Throughout all of this, of course, Ginsburg has made it clear that she has no intention of retiring before she’s ready to do so. By some accounts, she has long had a goal of at least matching the tenure on the court of Justice Louis Brandeis, who she has long considered a legal hero of hers. By that count, she wouldn’t even consider retiring until at least a year from now. Given her frequent statements that she likes her job and intends to stay there as long as she can, I wouldn’t even count on her retiring at that point. Instead, she likely intends to stay on through the end of the Obama Presidency, and in that regard she has said that she expects that the President who succeeds him will also be a Democrat. So, all these calls for retirement are basically falling on deaf ears. A fact confirmed by reports today that Ginsburg had not only hired all the law clerks she’ll need for the October 2014 Term, but also for the October 2015 Term as well. While plans can always change, that’s a fairly strong indicator that she ha.s no plans to leave any time soon.

In all honesty, of course, we’re likely long past the point where President Obama would be able to get a Supreme Court Nomination through the Senate smoothly. With a midterm election coming up, Senate Republicans would likely make every effort to block the nomination of a strongly liberal jurist, and in that regard its worth nothing that the filibuster is still an available tool when it comes to Supreme Court nominations. Obviously, that would become even more pronounced next year if the GOP takes control of the Senate. Even if it doesn’t though, the same calculus would apply. Then, once 2016 rolls around, both parties are going to be looking more at the Presidential election than cooperating on a Supreme Court nomination. Given that, if Ginsburg is giving any strategic thought at all to her retirement decision it seems like her best option would be wait until at least the end of the October 2016 Term, which would happen in June 2017 under a new President. Obviously, the Senate may be forced to deal with a nomination fight before then if another Justice retires or has a health crisis, which hopefully won’t happen, but to the extent there was ever a “good” time for Ginsburg to retire before the President’s term ended, that time has long passed.