This week brought yet another tussle in the altogether imaginary public battle over Ruth Bader Ginsburg’s future at the Supreme Court, this time in the form of a column in the Los Angeles Times by Erwin Chemerinsky, dean of the UC-Irvine law school, and someone whose opinions I always take extremely seriously.
Chemerinsky argues, as many have argued before him, that Ginsburg – who turned 81 on Saturday, has survived one type of cancer and one cancer scare, and has broken her ribs twice in the past two years – should retire this summer to ensure that “a Democratic president will be able to choose a successor who shares her views and values.”
Why this summer? Because “If Ginsburg waits until 2016 to announce her retirement, there is a real chance that Republicans would delay the confirmation process to block an outgoing president from being able to fill a vacancy on the Supreme Court.”
Chemerinsky fully voices the fears of all of us who have watched the court slowly erode abortion, employee, environmental and voting rights in the past decade. For instance: “There are ... four likely votes to overturn Roe v. Wade on the current court: Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. If a Republican president selects Ginsburg’s replacement, that justice easily could be the fifth vote needed to allow the government to prohibit all abortions.”
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Now, Chemerinsky is not the first to try to nudge Ginsburg into contemplating retirement, and he surely won’t be the last. Most of these columnists seem to assume that Ginsburg is either secretly dying or is determinedly unaware of the political world she inhabits.
But there’s another problem with these pleas for judges to behave rationally and politically: They seem to assume judges suffer from poor judgment. As Steven Mazie of the Economist puts it in a piece this week, “Does anyone really think the justice has yet to think through her decision? Isn’t the doomsday scenario of a 6- or 7-justice conservative bloc screamingly obvious to her?” In an interview last year with Joan Biskupic, Ginsburg made it plain that she was well-aware of all the liberal criticism and that she believed Sandra Day O’Connor left the court too early and didn’t plan to make that mistake. In an interview with Robert Barnes of The Washington Post she also made clear that she is monitoring her own health, her hearing and her ability to recall case names. I have seen not a lick of evidence that Ginsburg is failing.
Arguments about Ginsburg’s political judgment almost by necessity inflect upon her judgment as a whole, and yet nobody has advanced any argument for the proposition that Ginsburg’s judgment is failing. The suggestion that the woman who engineered the ACLU’s litigation strategy in the courts, who wrote the partial dissent in the health care cases, and again in last year’s voting rights case, and in Vance v. Ball and UT Southwestern Medical Center v. Nassar, doesn’t understand real-world politics is actually pretty bizarre.
Over at the Atlantic, professor Garrett Epps has just written in defense of Ginsburg. Two important points he makes are worth repeating. The first: Ginsburg plays an important role in the Roberts Court as the senior justice on the liberal bloc, not just in terms of assigning opinions but in terms of writing them.
If anything, Ginsburg has been stronger than ever in recent years and has been a crisper, more urgent voice for women’s rights, minority rights, affirmative action and the dignity of those who often go unseen at the high court than ever before. She has gone from rarely reading her dissents from the bench to doing so with great frequency, calling out the majority for what she sees as grave injustices and proving that her voice is both fiery and indispensable. Telling her that her work is awesome, but it’s time to move on is tantamount to saying that a liberal is a liberal and that Ginsburg brings nothing to the table that another Obama appointee will not replicate.
Epps’ other point is that knowing when you’ve stayed at the court too long is a complex and deeply personal inquiry, and that many of the justices who overstayed their time were blind to their own illnesses and failings. But of all the justices now at the court, Ginsburg strikes me as the least isolated, the least self-involved, and the least likely to surround herself with sycophants telling her to stay on.
Reproductive rights advocate and writer Jessica Mason Pieklo suggests that it’s not the legacy of Roe we should be obsessing about anyhow, but rather why it is that Democrats can’t seat progressives no matter which party is in power. Ginsburg herself often says that the chances of another Ginsburg being confirmed to the court today are negligible. It’s perverse in the extreme to seek to bench Ginsburg the fighter, simply because Senate Democrats are unwilling or unable to fight for the next Ginsburg.