Ginsberg, get out!

[MadImmortalMan]

 

Damn. People can be awful.

Justice Ginsburg's Future Plans Closely Watched
By THE ASSOCIATED PRESS
Published: July 2, 2011
Updated: July 3, 2011 at 1:47 AM ET


WASHINGTON (AP) — Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.


The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

But Ginsburg could retire now and allow 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?"

For now, Ginsburg's answer is, you don't.

There are few more indelicate questions to put to a Supreme Court justice, but Ginsburg has said gracefully, and with apparent good humor, that the president should not expect a retirement letter before 2015.

She will turn 82 that year, the same age Justice Louis Brandeis was when he left the court in 1939. Ginsburg, who is Jewish, has said she wants to emulate the court's first Jewish justice.

While declining an interview on the topic, Ginsburg pointed in a note to The Associated Press to another marker she has laid down, that she is awaiting the end of a traveling art exhibition that includes a painting that usually hangs in her office by the German emigre Josef Albers.

"Couldn't think of leaving until after it is returned to me, which won't be anytime soon," she wrote.

Certainly there is no indication that Ginsburg is slowing down on the job, even after she underwent surgery two years ago for pancreatic cancer that her doctors said was detected at a very early stage.

Appointed by President Bill Clinton in 1993, she served for the first time this term with two other women, Justices Elena Kagan and Sonia Sotomayor, and as the senior liberal-leaning justice, a role that gives her the power to assign dissenting opinions when she is on the losing side of ideologically split rulings.

On a personal level, she appeared to take comfort in her work as she adjusted to life without her husband, Martin, who died a year ago.

And she doesn't have to look very far ahead to imagine having a vote in some of the most important cases of her time on the court, including the challenge to Obama's health care overhaul and the fight over gay marriage.

Laura Krugman Ray, a Widener University law professor who has written about Ginsburg, said it is easy to believe Ginsburg would want to have a voice in those cases.

"I think the court is enormously important for her," Ray said. "And especially now after husband's death, you wonder what she can see herself doing if she were not on the court."

Ginsburg, the second woman on the bench, has only to look at the first for a cautionary tale about retiring. Sandra Day O'Connor announced her retirement in 2005 in part so she could take care of her ailing husband, John. Two months later, Chief Justice William Rehnquist died in office.

Meanwhile, John O'Connor's health declined much faster than his wife anticipated and he soon was living in a nursing home in Arizona. Would she have quit the court had she known what awaited?

In retirement, O'Connor has maintained a busy schedule, hearing cases on federal appeals courts as well as advocating for Alzheimer's funding, improved civics education and merit selection, rather than partisan election, of state judges.

O'Connor, now 81, also has said she that she regrets that some of her decisions have been "dismantled" by the Supreme Court. Justice Samuel Alito, who took her seat in 2006, has voted differently from O'Connor in key cases involving abortion rights, campaign finance and the use of race in governmental policies.

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."

The longest-serving justice, William Douglas, was on the court for more than 36 1/2 years, reluctant to retire even after a debilitating stroke. "History teaches us that often longer is not better," Garrow said.

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.

Chief Justice Earl Warren never envisioned retiring during the presidency of his nemesis, Richard Nixon. Yet that is exactly what came to pass in 1969.

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 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.

[citizen k]

In't it sad when politics trumps everything? That Harvard professor, Randall Kennedy, needs to chillax.

[DGuller]

I think Supreme Court justices should be selected for a fixed term.  This whole business with picking the justices according to an actuarial life table is getting out of hand.

[grumbler]

In't it sad when politics trumps everything? That Harvard professor, Randall Kennedy, needs to chillax.

He is over 50 and should resign so his position can be filled by a liberal Harvard president.

I wouldn't mind an amendment or at least a tradition of retirement from the Supreme Court before feebleness sets in.  Ginsberg doesn't seem feeble at all, but that could change almost overnight, and 78 is just too old for such an important position even in these days of longer lifespans.

65 is probably too young.  70 sounds about right as a maximum allowable age.

[grumbler]

I think Supreme Court justices should be selected for a fixed term.  This whole business with picking the justices according to an actuarial life table is getting out of hand.

That's the alternative to a fixed retirement age.  What's your proposal?  Ten-year terms?

[DGuller]

I think Supreme Court justices should be selected for a fixed term.  This whole business with picking the justices according to an actuarial life table is getting out of hand.

That's the alternative to a fixed retirement age.  What's your proposal?  Ten-year terms?

Ten years is probably too short, if you value stability of the ideological make-up, since one two-term president can pretty much nominate most of the court.  I think an 18 year term would work better.  That way you can also stagger the nominations to be once every two years, in order to not give any particular presidential term an undue advantage in packing the court.  If someone croaks or retires before their term is up, the replacement can only serve out the rest of the term, and be ineligible for the next round.

[Admiral Yi]

That seems like an awful lot of trouble DGuller.  Wouldn't it be simpler to just abolish the court and automatically decide every even numbered case as a Republican victory, and the odd numbered ones as Democratic victories?

[grumbler]

Ten years is probably too short, if you value stability of the ideological make-up, since one two-term president can pretty much nominate most of the court.  I think an 18 year term would work better.  That way you can also stagger the nominations to be once every two years, in order to not give any particular presidential term an undue advantage in packing the court.  If someone croaks or retires before their term is up, the replacement can only serve out the rest of the term, and be ineligible for the next round.

I like this idea.  Do you propose that all federal judges serve fixed terms, or just the Supremes?

[grumbler]

That seems like an awful lot of trouble DGuller.  Wouldn't it be simpler to just abolish the court and automatically decide every even numbered case as a Republican victory, and the odd numbered ones as Democratic victories?

  Your way (like DGuller's) is less trouble than the current system, as well. 

Would be less to bitch about, though.

[The Minsky Moment]

That seems like an awful lot of trouble DGuller.  Wouldn't it be simpler to just abolish the court and automatically decide every even numbered case as a Republican victory, and the odd numbered ones as Democratic victories?

Few cases on the docket divide cleanly that way.

[DGuller]

Ten years is probably too short, if you value stability of the ideological make-up, since one two-term president can pretty much nominate most of the court.  I think an 18 year term would work better.  That way you can also stagger the nominations to be once every two years, in order to not give any particular presidential term an undue advantage in packing the court.  If someone croaks or retires before their term is up, the replacement can only serve out the rest of the term, and be ineligible for the next round.

I like this idea.  Do you propose that all federal judges serve fixed terms, or just the Supremes?

I don't know much about those judges, so I have no opinion on that matter.  However, if the problem is the same there, and that is that people are chosen in order to push a certain ideology for the maximum time biology allows them, then sure.

[grumbler]

Few cases on the docket divide cleanly that way.

Since you are amending the constitution to eliminate the court, you could just also amend it to require cases on the docket to divide that way.

Not sure which Republican gets to decide the outcome of the "Republican victories," and which Democrat the "Democratic" ones, though.  There would have to be an amendment about that, too.

Jeez, this is getting harder than DGuller's system!

[DGuller]

My system is very easy and simple to implement, all it requires is a constitutional amendment.

[The Minsky Moment]

Let's take an obvious "political" case like Citizens United.

On the one hand, it benefits corporations, so it must be Republican.
On the other hand it expands first amendment rights, so it must be Democrat.
Then again, the effect will be to help the GOP raise more money, so it must be Republican.
But it also allows Unions a bigger role in national political campaigns, so it must be Democrat.
Most Republicans applauded it, so it must be Republican.
But it killed John McCain's legislative baby, so it must be Democrat.

[The Minsky Moment]

simple to implement

requires is a constitutional amendment.

Ahem.