RUTHFULLY YOURS

RUTHLESS PEOPLE: JAMES TARANTO…LIBERALS TO GINSBERG….”DROP DEAD”

Posted By Ruth King on July 7th, 2011

http://online.wsj.com/article/SB10001424052702303365804576429852703978020.html?mod=WSJ_Opinion_MIDDLETopOpinion

Some legal observers would like to be rid of Justice Ruth Bader Ginsburg, the Associated Press reported over the weekend. These aren’t conservatives who find her too activist but liberals who find her too old and worry that if she doesn’t get out soon, a Republican president will get to replace her:

Ginsburg could retire now and allow [President] 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?” . . .

But 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.” . . .

Justices sometimes look at electoral projections when considering retirement, he said, adding that Ginsburg probably still could decide to retire next summer if Obama’s electoral prospects seem shaky.

These guys don’t seem very confident about Obama’s re-election prospects, do they? Interestingly, quite a few conservatives we talk to are correspondingly pessimistic about the Republicans’ ability to defeat Obama. We’re with the libs on that one, though only very tentatively.

Getty ImagesHow can Erwin Chemerinsky miss you when you won’t go away?

What’s odd about the demands for Ginsburg to take one for the team–really, to sacrifice the remainder of her professional life for the team–is that as crassly political as the people making them are in the view of the law, they don’t seem to have given much thought to the politics of confirming a Ginsburg successor.

The most obvious problem is that although Democrats hold a majority of seats in the Senate, it is not a big enough majority to control the body. If Ginsburg were to retire a year hence, Republicans could easily prevent the confirmation of an Obama-nominated replacement in the four months before the election by using the Democrat-pioneered tactics of waging a smear campaign and filibustering to prevent a confirmation vote. With 47 Republican senators, they could lose as many as 6 and still sustain a filibuster.

Particularly if Ginsburg made her retirement conditional on the appointment of a successor, as Justice Sandra Day O’Connor did in 2005, GOP senators could even make a high-minded argument: that we can wait a few months and give the voters the chance to weigh in before installing someone whose influence will last for decades. (If any of this happens, Democratic senators will rue the day they started filibustering George W. Bush’s judicial nominees.)

To be sure, politically timed retirements are not unprecedented, perhaps not even unusual. One could argue that every justice to retire since William Douglas in 1975 timed his departure, or attempted to do so, with the aim of ensuring a replacement would be appointed by a president of the same party or ideological leaning.

O’Connor, for instance, is said to have wanted a Republican to choose her successor, and given the high court’s controversial involvement in the 2000 election, it’s not surprising that she waited until after 2004 to depart. By the same token, one suspects it was no coincidence that liberals David Souter and John Paul Stevens waited out the Bush presidency, or that William Brennan and Thurgood Marshall outlasted Reagan–though the latter pair proved too frail to hold out until 1992.

But no justice since Earl Warren has retired during a presidential election year–and the AP reminds us of what happened in that case:

[Chief Justice] Warren planned to step down early in what he hoped would be Lyndon Johnson’s second full term. But then the Vietnam War got in the way of Johnson’s re-election plans and Robert Kennedy fell to an assassin’s bullet.

At that point, Warren thought Nixon had a reasonable chance of winning the presidency “and desperately tried to leave under a lame-duck LBJ presidency on its last legs,” said Artemus Ward, a political science professor at Northern Illinois University who has written about court retirements.

Johnson’s nomination of [Associate Justice] Abe Fortas as chief justice failed amid election-year politics in the Senate and the first allegations of financial improprieties that eventually would drive Fortas from the bench. Early in 1969, Nixon nominated Warren Burger as chief justice.

Warren’s New York Times obituary reports that after Fortas’s nomination failed, “Warren then announced that he would retire at the end of the Court’s term in June, 1969.” That suggests that a conditional retirement is not binding in the absence of an outstanding nomination of a successor.

Conceivably Ginsburg could announce a conditional retirement in July 2012, then rescind it altogether after the election if a replacement has not been confirmed and Obama loses. Such a move, however, would be so brazenly political that it would damage Ginsburg’s reputation and that of the court.

For her part, Ginsburg has said she will not yield to the ghoulish left’s entreaties. The AP reports that she “has said gracefully, and with apparent good humor, that the president should not expect a retirement letter before 2015,” the year she turns 82. (Her benchmark is the age at which Justice Louis Brandeis, the high court’s first Jew, left the bench.) Maybe, like Chief Justice William Rehnquist, she will never retire.

And there is a bright side for Chemerinsky, Kennedy and Garrow: If Ginsburg does retire in 2015, it is possible–at least for now–that Obama will appoint her successor.

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