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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

(Page 2)

Appointed to the court in 1993 by President Clinton, Ginsburg has had the misfortune of serving under two arch conservatives—the late Chief Justice William Rehnquist and now Roberts. Still, she has managed to amass an impressive body of work, writing majority opinions striking down Virginia Military Academy’s male-only admissions policy (US v. Virginia) and limiting the authority of judges, sitting in cases without a jury, to impose death sentences (Ring v. Arizona).

In many of the most controversial cases, because of the court’s political composition, she has found herself in the minority, relegated to crafting blistering dissenting opinions. Among the most memorable are her dissents denouncing the activism and hypocrisy of the Republican majority for upholding the blanket federal ban on so-called partial birth abortions (Gonzalez v. Carhart), denying equal pay for women (Ledbetter v. Goodyear) and gutting the Voting Rights Act (Shelby County v. Holder).

There is also broad consensus among the debaters that if Ginsburg hangs on past 2016, and the Republicans retake the White House, a variety of fragile 5-4 liberal precedents would likely fall, including last term’s ruling partially invalidating the Defense of Marriage Act (US v. Windsor), the 2012 decision upholding Obamacare’s individual mandate (National Federation of Independent Business v. Sebelius) and even the 1973 Roe v. Wade landmark recognizing the constitutional right to abortion.

The names floated as possible Obama nominees to replace Ginsburg are highly competent but mostly moderate lawyers and judges ranging in age from their late 40s to early 50s. They span the gamut from California Attorney General Kamala Harris, who would be the first African-American woman on the court, to D.C. Circuit Judge Sri Srinivasan, a former deputy solicitor general who would be the court’s first Indian-American justice, and 8th Circuit Judge Jane Kelly, a onetime public defender from Iowa.

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It may well be, as Lithwick insists, that given her talent and courage, Justice Ginsburg is irreplaceable. But like it or not, one day—and not too far in the near future—she will in fact be replaced. The thought of having a President Ted Cruz or a President Rand Paul or a President Jeb Bush anoint her successor is so grim and terrifying that the public debate over Ginsburg’s retirement will continue, as ham-fisted and tasteless as the discussion may be. It’s just too important to go away. 


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