There is a debate among liberal intellectuals about whether it's appropriate to urge Ruth Bader Ginsburg to step down with the Democrats still in control of the Senate and White House. It's a discussion that brings up a lot of fascinating questions of public obligation and the respect due to individuals. But the key takeaway should be this: The decision about whether to retire should be taken out of the hands of individual justices.
The argument for Ginsburg stepping down now, made most recently by the eminent legal scholar and dean of the law school at the University of California-Irvine, Erwin Chemerinsky, is straightforward and compelling on its own terms. If Ginsburg remains on the Court and leaves the Court with a Republican occupying the White House, the most likely result would be Antonin Scalia or John Roberts being the median vote on the Supreme Court. This would be a disaster for the country and, more to the point, for the values that Justice Ginsburg has spent her life fighting for. And even if she left with a Democratic president in the White House but a Republican-controlled Senate, the result would likely be a justice less progressive than Ginsburg. "[T]he best way for her to advance all the things she has spent her life working for," Chemerinsky concludes, "is to ensure that a Democratic president picks her successor." This isn't a complicated argument, but it's a powerful one.
This familiar argument has generated a backlash, arguing that the calls for Ginsburg to resign are inappropriate, and at least in some cases condescending and sexist. Garrett Epps argues in the Atlantic that "[i]f Justice Ruth Bader Ginsburg had followed advice from male law professors like me, she would probably not be where she is today." Slate's Dahlia Lithwick argues that the calls for Ginsburg to resign both have no chance of working and underestimate her unique contribution to the Court. Lithwick also links to this piece from her colleague Emily Bazelon from last year, making a good case that some of the calls for Ginsburg to resign give off a distinct odor of sexism.
The problem, as I see it, is that everybody's right. Ginsburg staying on does create an increased risk of disaster. And while I agree with much of Lithwick's argument, I don't agree that "Senate Democrats are unwilling or unable to fight for the next Ginsburg." Ginsburg has, without question, been a superb justice. But she's not notably more progressive than Justices Sotomayor and Kagan, who voted with her 93 percent and 94 percent of the time, respectively, last term. And while there's certainly more to a justice than her votes, and surely Ginsburg brings particular abilities to the table that can't be replicated, Justice Kagan in particular has shown herself to be a first-rate crafter of opinions. And while it's not well-understood now, at the time of her appointment, Ginsburg was widely perceived as a moderate who was acceptable to Republicans on the Senate Judiciary Committee. I see no reason that a replacement for Justice Ginsburg selected by President Obama with a Democratic Senate wouldn't be a worthy successor.
On the other hand, there is something about hectoring Ginsburg to retire that feels gross. People, Kant reminded us, should be treated as ends unto themselves instead of means. It's hard to tell someone to give up a job that means the world to them, and Ginsburg is well aware of the stakes. And it's fair to question why there has been so much more focus on the retirement of Ginsburg rather than Breyer. While Ginsburg is older, her gender makes the difference irrelevant; actuarial tables suggest that a woman of Ginsburg's age and a man of Breyer's age would both be expected to live until around age 90. And while Ginsburg is a cancer survivor, as Lithwick observes there's no evidence that this is affecting her physically or mentally. And while it would certainly be difficult to replace Ginsburg with a better justice, that's much less true with respect to Breyer, who is a less reliable liberal vote than either of President Obama's nominees to the Court.
As of now, admittedly, the question is probably moot. If Ginsburg were to retire over the summer, I doubt it would be possible to get a replacement confirmed before the midterm elections—with both the off-year election and the Senate electoral map favoring the Republicans, their incentives to use all means possible to obstruct any decent nominee will be overwhelming. At this point, the interests of Justice Ginsburg and progressives are probably in unison.
But there's an obvious way of preventing these kinds of dilemmas in the future: fixed, non-renewable terms for judges. All of the complex questions about the political timing of judicial retirements are the function of a life tenure for judges that is becoming increasingly unusual compared to America's peers. And in addition to avoiding the kinds of moral dilemmas presented by the question of whether Ginsburg should retire, judicial terms limits would ensure that judicial appointments are evenly distributed among presidents, prevent the federal courts from getting too out of sync with the nation's political culture, and prevent the arms race of trying to get the youngest nominees possible. And while Justice Ginsburg's ability to do the job is not in question, more than one justice has stayed on after they were fully able to do the job. Wanting to hang on to a job that has for some justices become the main thing to live for is understandable from the standpoint of the justice, but it's not in the interests of the country.
The decision by the framers to give federal judges life tenure made sense at the time. Being a Supreme Court justice in 1791 was a fairly miserable job, involving large amounts of travel on horse-drawn carriages and inns of dubious quality in exchange for little power and prestige. (The first Chief Justice of the Supreme Court left after 6 years to become the Governor of New York; the second lasted four.) Judges staying on for too long was not a primary concern for the framers for good reason. But for multiple reasons, it is now. The debate over Justice Ginsburg should serve as another illustration for the value of term limits.
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