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Should She Stay or Should She Go? The Debate Over Justice Ruth Bader Ginsburg’s Retirement

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Posted on Apr 15, 2014

By Bill Blum

(AP/Jacquelyn Martin)

Supreme Court Justice Ruth Bader Ginsburg is 81 years old. She stands just over 5 feet tall and tips the scales at a hefty 100 pounds. She speaks with what some observers have described as a “tiny” voice laced with a Brooklyn accent. A survivor of both colon and pancreatic cancer, she sits so stooped-shouldered at State of the Union addresses that she seems on the verge of keeling over.

It should come as no surprise, then, that Ginsburg is at the center of a roiling debate among left-leaning lawyers, scholars and legal commentators as to whether the time has come for her to retire in order to permit a Democratic president, Barack Obama, to nominate her successor. 

There is no doubt about the debate’s importance. The court has always been a political institution, wielding enormous power over the lives of every American. Under the leadership of Chief Justice John Roberts, however, it has become increasingly and blatantly biased, issuing a series of fractured 5-4 decisions that have altered the country’s legal landscape in such vital areas as the right to bear arms under the Second Amendment, campaign finance and corporate personhood, union organizing and voting rights.

Ginsburg’s retirement, depending on when it comes, won’t end the partisan divide, but it could easily send the court spiraling in an even more extreme right-wing direction than it has charted thus far if the tribunal’s present five-member conservative majority suddenly becomes a division of six to three. Still, there is great uncertainty at the heart of the debate. After all the pros and cons are balanced and weighed, there is no easy or comforting answer to the question: Should Justice Ginsburg stay or should she go?

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In an op-ed in the Los Angeles Times in March shortly after Ginsburg’s last birthday, Erwin Chemerinsky, dean of the School of Law at UC Irvine, made the case for her retirement. 

According to Chemerinsky, who has argued several important cases before the court, Ginsburg should call it quits in June at the end of the tribunal’s present term. That would give Obama just enough time over the summer to install a replacement before the midterm elections. After that, Chemerinsky reasons, it may be too late, given the prospects for the Republicans reclaiming the Senate and acquiring the authority to nix any nomination.

Presenting the opposite view in a recent Slate.com column, courts and law writer Dahlia Lithwick takes Chemerinsky to task not only for demonstrating bad taste in raising deeply personal questions about Ginsburg but for naively believing that his efforts to nudge Ginsburg to turn in her judicial robes actually might succeed.

“The fact is that making a political judgment about a justice in a public forum is never going to work,” Lithwick charges. “Do Ginsburg’s critics think she has forgotten her age, or her medical history, or the date of the upcoming election? Do they expect her to answer blatantly political questions from reporters about the need for Obama to appoint her successor in blatantly political ways? She answers in riddles not because she is clueless but because to do otherwise would be absurd, and undermine the judicial branch, and her own integrity.” To date, Ginsburg has said only that she will stay on as long as her health permits.

While Chemerinsky and Lithwick sharply dispute the merits of Ginsburg stepping down, they and other participants in the retirement debate agree that the justice is still functioning at a high level, and that she has been an invaluable asset on the bench. Academic studies confirm that as the high court as a whole has moved further to the right, Ginsburg and her two female colleagues—Justices Sonia Sotomayor and Elena Kagan—have been the court’s most consistent liberals.

 


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