Justice Ginsburg: Resign Already!

If the oldest member of the Supreme Court wants to preserve her liberal legacy, she should leave before the Republican Senate takeover.

WASHINGTON, DC - JANUARY 24: U.S. President Barack Obama greets Supreme Court Justice Ruth Bader Ginsburg before his State of the Union address before a joint session of Congress on Capitol Hill January 24, 2012 in Washington, DC. The president made a populist pitch to voters for economic fairness, saying the federal government should do more to balance the benefits of a capitalist society. 
Getty Images
James Oliphant
Add to Briefcase
See more stories about...
James Oliphant
Dec. 5, 2013, 4 p.m.

Su­preme Court justices are, in one sense, like 3-year-olds. No one tells them what to do. So, when calls come for a justice to re­tire, as they are be­gin­ning to, yet again, for 80-year-old Ruth Bader Gins­burg, don’t ex­pect her to listen — or care. But there are very real factors that make this time dif­fer­ent, and that make the case for the Court’s reign­ing pro­gress­ive cham­pi­on to con­sider, fi­nally, step­ping down. Call it an­oth­er un­fore­seen con­sequence of Obama­care.

The botched rol­lout of the Af­ford­able Care Act has placed the Demo­crat­ic Sen­ate ma­jor­ity in jeop­ardy in a way it hasn’t been up till now. A CNN poll re­leased last week showed a massive shift in pub­lic at­ti­tudes, with re­spond­ents fa­vor­ing the GOP over Demo­crats on a gen­er­ic con­gres­sion­al bal­lot. Just a month earli­er, be­fore the frenzy over the de­but of the star-crossed en­roll­ment web­site, Demo­crats held an 8-point ad­vant­age on the gen­er­ic bal­lot. That has va­por­ized.

Ad­mit­tedly, the GOP still has a thorny path to claim Sen­ate con­trol, es­sen­tially need­ing to gain a net six seats. Most ana­lysts be­lieve they will fall short — and in­stead likely will edge the cham­ber closer to a 50-50 split. Even so, the Obama­care fur­or has made a flip less of a long shot than it was.

And with any shift in the bal­ance of power comes a cor­res­pond­ing shift in White House strategy should Gins­burg choose to step down. The justice has signaled she would like to re­tire while a Demo­crat is pres­id­ent. Right now, the party, with the help of two in­de­pend­ents, holds 55 Sen­ate seats. After next year, that num­ber could drop to 52 or even lower, per­haps even be­low a ma­jor­ity. If Gins­burg’s hope is to have a true-blue lib­er­al, or a his­tory-mak­ing nom­in­ee, take her place, she should an­nounce her re­tire­ment — and soon­er rather than later, to give the pres­id­ent as much time as pos­sible to se­cure her suc­cessor.

Re­mem­ber, Gins­burg isn’t just any justice. She’s a trail­blazer, the Court’s first lib­er­al fe­male jur­ist, a former ACLU law­yer who has ded­ic­ated her ca­reer to fight­ing for fem­in­ist and pro­gress­ive causes. More than most justices, she has built a leg­acy, through her work be­fore join­ing the high court and dur­ing her 20-year ten­ure on it.

If the pres­id­ent wants to se­lect a pro­gress­ive to suc­ceed her, he would be wise to do it when he has max­im­um lever­age in the Sen­ate. The great­er the num­ber of Re­pub­lic­ans in the cham­ber, the great­er the chance of a fili­buster — and that has nev­er been truer than now. While a fili­buster has nev­er been used to keep a justice off the Su­preme Court, Ma­jor­ity Lead­er Harry Re­id changed the game last month when he in­voked the “nuc­le­ar op­tion” to elim­in­ate its use for lower-court nom­in­ees. His move dra­mat­ic­ally raised the pos­sib­il­ity the GOP will seek to pick a fight with a high-court choice it deems too left-lean­ing. “Now would be the time, if that’s go­ing to hap­pen,” says Chris­toph­er Schroeder, a former high-rank­ing Obama Justice De­part­ment of­fi­cial who was in­volved in se­lect­ing ju­di­cial nom­in­ees.

If the Sen­ate flips and sud­denly it’s Sen. Chuck Grass­ley of Iowa or some oth­er Re­pub­lic­an run­ning the Ju­di­ciary Com­mit­tee, “it gets harder,” says Marge Baker, ex­ec­ut­ive vice pres­id­ent of the lib­er­al ad­vocacy group People for the Amer­ic­an Way. Even short of an out­right fili­buster, a chair­man can use a vari­ety of pro­ced­ur­al tricks to slow-walk a nom­in­a­tion, es­pe­cially in a pres­id­en­tial-elec­tion year.

Gins­burg has to think about the long game. Her re­tire­ment could give the pres­id­ent the op­por­tun­ity to make his­tory by ap­point­ing the first Asi­an-Amer­ic­an justice, someone such as Good­win Liu, a Cali­for­nia Su­preme Court justice whom Sen­ate Re­pub­lic­ans kept from a fed­er­al Ap­peals Court seat in 2011, or Cali­for­nia At­tor­ney Gen­er­al Kamala Har­ris, who is Asi­an-Amer­ic­an and Afric­an-Amer­ic­an. Either pick would re­quire Obama to burn more of his rap­idly dwind­ling polit­ic­al cap­it­al — and either would likely be a harder sell after 2014. Be­cause of that, in a more closely di­vided Sen­ate after the midterms, the White House may be temp­ted to turn to a safer op­tion, such as Mer­rick Gar­land, a Wash­ing­ton fed­er­al Ap­peals Court judge who pro­sec­uted ter­ror­ism cases for the Justice De­part­ment.

And then Gins­burg also has to con­sider her lib­er­al col­league, Steph­en Brey­er, 75. Would he, too, seek to re­tire be­fore a po­ten­tial GOP pres­id­en­tial vic­tory in 2016? If so, Obama would have more breath­ing room if Gins­burg quits next year and Brey­er fol­lows the year after — be­fore the cam­paign fol­lies start up in earn­est in 2016 and Re­pub­lic­ans likely would seek to stone­wall any high-court pick.

Su­preme Court justices are no­tori­ously im­mune to out­side pres­sures to quit. Wil­li­am Rehnquist, the former chief justice, frus­trated some con­ser­vat­ives by stay­ing on through the 2004 elec­tions while deathly ill, when the threat of John Kerry rather than George W. Bush pick­ing his suc­cessor was very real. But a re­tire­ment an­nounce­ment from Gins­burg would not be without pre­ced­ent. Young­er justices have left of their own ac­cord. Sandra Day O’Con­nor was 75 when she an­nounced her re­tire­ment in 2005, and Dav­id Souter was 69 when he de­cided to leave in 2009. Souter’s re­tire­ment al­lowed Obama to se­lect a like-minded suc­cessor in So­nia So­to­may­or.

The Obama White House won’t even dis­cuss the pos­sib­il­ity of a Gins­burg re­tire­ment, and the pro­spect of be­ing seen as push­ing her out makes lib­er­al ad­vocacy groups squeam­ish. So that may leave it up to the justice to read the midterm tea leaves and act ac­cord­ingly. Resign­ing would be a self­less ges­ture that would only burn­ish her pro­gress­ive leg­acy. Stay­ing could help push the Court fur­ther to the right. It’s time for her to fly.

What We're Following See More »
Trump Draws Laughs, Boos at Al Smith Dinner
9 hours ago

After a lighthearted beginning, Donald Trump's appearance at the Al Smith charity dinner in New York "took a tough turn as the crowd repeatedly booed the GOP nominee for his sharp-edged jokes about his rival Hillary Clinton."

McMullin Leads in New Utah Poll
16 hours ago

Evan McMul­lin came out on top in a Emer­son Col­lege poll of Utah with 31% of the vote. Donald Trump came in second with 27%, while Hillary Clin­ton took third with 24%. Gary John­son re­ceived 5% of the vote in the sur­vey.

Quinnipiac Has Clinton Up by 7
16 hours ago

A new Quin­nipi­ac Uni­versity poll finds Hillary Clin­ton lead­ing Donald Trump by seven percentage points, 47%-40%. Trump’s “lead among men and white voters all but” van­ished from the uni­versity’s early Oc­to­ber poll. A new PPRI/Brook­ings sur­vey shows a much bigger lead, with Clinton up 51%-36%. And an IBD/TIPP poll leans the other way, showing a vir­tu­al dead heat, with Trump tak­ing 41% of the vote to Clin­ton’s 40% in a four-way match­up.

Trump: I’ll Accept the Results “If I Win”
17 hours ago
Who Spoke More During the Final Debate?
21 hours ago

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.