Over at the New Yorker this morning, Jeffrey Toobin has written up a list of potential Supreme Court nominees. No, you didn't miss anything; no one's died or resigned; and according to some that's just the problem. Toobin puts it relatively delicately:
Not so suddenly, there’s an elderly quartet at the Supreme Court. Ruth Bader Ginsburg just turned eighty-one, and she’s followed closely in age by Antonin Scalia, seventy-eight; Anthony Kennedy, seventy-seven; and Stephen Breyer, seventy-five. None of these Justices has signalled a desire to leave the Court anytime soon, but time catches up with everyone.
Eyes are actually truly only on one judge to retire, and that would be the eldest, Ginsburg. The respected constitutional law professor Erwin Chemerinsky, cut right to the chase in an L.A. Times op-ed he published over the weekend:
Justice Ruth Bader Ginsburg should retire from the Supreme Court after the completion of the current term in June... only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values.
Chemerinsky goes on to explain that if Ginsburg waits much longer, two things might happen. One, obviously, is that we're going to have a new administration in two years. But the particular reason Chemerinsky says he'd like Ginsburg to go this summer is the risk that the Senate will go Republican in the fall 2014 midterms, which will make confirmation of a liberal candidate to the court that much harder.
The perversity of Chemerinsky's demand is that it's hard to imagine there is a successor out there who "shares her views and values," never mind one who is confirmable. Ruth Bader Ginsburg needs to quit the Supreme Court, the argument goes, because it's so valuable to have someone like Ruth Bader Ginsburg on the Supreme Court.
By now we shouldn't need to rehearse her accomplishments (Toobin did a good job at it in the New Yorker last year) but just in case: Ginsburg fought her way into the profession at a time when firms and judges refused outright to employ women. She then spent her career fighting strategic lawsuits against gender discrimination, the existence of which we continue to fight about today. Because of her men are not automatically preferred as estate administrators, and widowers were granted Social Security benefits.
Ginsburg also did not shy from issuing views on the giant public controversies. She openly supported the Equal Rights Amendment. In fact, in a 1975 editorial in the Washington Post, she went so far as to compare the need for it to the need for a Constitution at the time of Independence. Of the fears of people who thought the ERA too unpredictable, she wrote, "Had similar counsel prevailed two centuries ago, we would not be preparing this year for our bicentennial."
Well, the "similar counsel" did prevail, and the ERA failed. But by the time Ginsburg was nominated to the Supreme Court, in 1993, she was considered a "safe" choice. She had spent more than a decade as a federal circuit judge. In that position, she became known as less of a firebrand liberal than an incrementalist, someone who didn't like to stray too too far from precedent. Which is why she was so easily confirmed in spite of what today we might call a "radical" past.
They just don't make careers like Ginsburg's anymore, for yes, among other reasons, the alchemy of the time she came up and her gender. In the past Slate's Emily Bazelon has suggested that one reason that legal pundits zero in on Ginsburg's retirement is sexism. (One reason, she said.) That's true, but to be honest: gender is irretrievably caught up in the reasons she should stay too. There's something about her particular experience, of coming up as a woman in the 1970s, fighting her way to her place, that her perspective is irreplaceable on the court.
Yes, of course Supreme Court appointments are political and the timing of administration change is a necessary element of the calculation, and yes, of course there's an argument, as Bazelon also pointed out, for term limits on Supreme Court justices anyway because it's good to have fresh blood on the court and democratic accountability, etc., etc.
But John Paul Stevens got to stay until he was 90, and regardless of any tactical politics, it's a safe bet bet they'll have to cart Scalia out in a hearse. There are worse things than letting Ginsburg stick around, because we're truly unlikely to see her kind on the court again.
[Photo Credit: AP.]
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