The Supreme Court's most liberal justice is in it for the long haul, and that's causing heartburn for some of her staunchest allies.
“I will do this job as long as I can do it full-steam,” Ginsburg said. “When I feel myself slipping, when I can no longer think as sharply, write as quickly — that will be the time for me to leave the court.”
This is not the first time Ginsburg has stated her intention to stay on the court. That hasn’t stopped certain liberal pundits and legal scholars from calling on the 81-year-old to retire so that a Democratic president and Democrat-majority Senate can pick her successor.
“In the end, the only way to ensure that President Obama can pick someone who will carry on in Justice Ginsburg’s tradition is for the vacancy to occur this summer,” wrote Erwin Chemerinsky, dean of the UC-Irvine Law School. “Indeed, Justice Stephen G. Breyer, who will turn 76 this summer, should also carefully consider the possibility of stepping down this year.”
Ginsburg is the oldest member of the court by three years (Justice Antonin Scalia is 78) and she has been plagued by health issues. She suffered two broken ribs after a fall in 2012 and has twice been treated for cancer.
Some fear that if Ginsburg waits too long, her seat will be vacated when Republicans control the Senate and quite possibly the White House. Better safe than sorry, their reasoning goes. Or, to borrow a headline from the Huffington Post, "Thank you for your service, but it's time to go Justice Ginsburg."
This position has not been without controversy on the Left, whose factions have traded intermittent fire since Ginsburg's retirement was first floated several years ago. According to her defenders, Ginsburg is "irreplaceable." Also, people who want her to retire are way sexist.
Nonetheless, the Upshot's David Leonhardt writes that liberals' fears are supported by history. In 1968, the Senate declined to replace outgoing Chief Justice Earl Warren with Associate Justice Abe Fortas because of his chummy relationship with President Lyndon Johnson. A conservative Richard Nixon appointee, Judge Warren Burger, was confirmed to replace Warren the next year.
“Johnson’s gamble on Mr. Fortas turned into one of the most consequential blunders in modern American politics,” Leonhardt writes.
Most electoral projections give the GOP an edge over the Democratic Party in winning the Senate this year, although it will be a close shave either way. If the razor cuts in Republicans' favor, they will be able to block Obama's court nominees until a new president occupies the White House.
The nightmare scenario for liberal court watchers would be a replay of 1968, in which a liberal justice, Ginsburg, dies or is forced to retire under a Republican Senate and president. If this occurs, the court’s swing vote could move one member to the right, from the unpredictable Justice Anthony Kennedy to Chief Justice John Roberts, who is conservative. A six-member conservative majority would thus be cemented for decades to come, ushering in a dark age of Borkian proportions in the minds of liberals.
“If a Republican president selects Ginsburg’s replacement, that justice easily could be the fifth vote needed to allow the government to prohibit all abortion,” Chemerinsky notes darkly.