In April 2011, Harvard law professor Randall
Kennedy published a surprising article in The New Republic
urging Supreme Court Justices Ruth Bader Ginsburg and Stephen
Breyer to stop being so selfish and to start thinking about the
good of American liberalism by planning their early retirements
from the bench. “If Ginsburg and Breyer abjure retirement and Obama
wins,” he wrote, “the justices’ subsequent departures will be
relatively harmless. On the other hand, if Obama loses, they will
have contributed to a disaster.” Indeed, Kennedy asserted, “Their
estimable records will be besmirched...if they stay on the bench
too long.”
That piece was not exactly subtle in its partisan calculations,
but it did make a certain amount of ghoulish sense: Ginsburg and
Breyer were not spring chickens and Obama’s reelection was not
guaranteed. Therefore, Kennedy concluded, the two geriatric
justices should shuffle offstage for the good of the cause.
Obama won, of course, averting Kennedy’s feared “disaster.” So
that means liberals have finally stopped bugging Ginsburg and
Breyer about their retirements, right? Not exactly. Earlier this
week, on the occasion of Ginsburg’s 80th birthday, legal blogger
Kenneth Jost
weighed in with a post titled, “At 80, Ginsburg Needs to Know
When to Step Aside.” Here’s the crux of what he had to say:
To safeguard her legacy, Ginsburg must now make the right
decision about when to retire from the court. She has spoken often
— most recently to [journalist Jeffrey] Toobin — about wanting to
stay until she is 82, the age at which her judicial hero Louis
Brandeis retired from the court. Conveniently, she will reach that
age in 2015, with Barack Obama, a civil liberties-minded Democrat,
still in the White House....
Ginsburg told Toobin that she would stay on the court “as long
as I can do the job full steam.” By her own words, however, her
stamina is not the only relevant consideration. Ginsburg’s legacy
will depend in part on whether she makes the right decision about
the best time to step aside.
By her own admission Ginsburg plans to stick around until 2015,
which still gives Obama plenty of time to replace her. You’d think
her purported admirers would give her a break until then. … Read More
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