Ruth Bader Ginsburg is the most impressive Justice on the United States Supreme Court, and she has had an astonishingly full and impressive career. The Court will suffer without her. And yet she is also 81 years old. She has had health issues. And she is currently serving in the sixth year of a Democratic presidential term, with no guarantee of who the next president will be. You might think that these facts call for her to retire now, and thus ensure that her seat on the bench is filled by an Obama appointee, who would be almost certain make it through the Senate (which might not be Democratic in a year). And yet liberal commentators seem to be arguing otherwise. The consequences could be severe.
Dahlia Lithwick, the excellent Slate columnist, has an alternately strange and maddening piece this week which argues that Ginsburg is "irreplaceable" and should not retire. According to Lithwick:
But there’s another problem with these pleas for judges to behave rationally and politically: They seem to assume judges suffer from poor judgment. As Steven Mazie of the Economist puts it in a piece today, “Does anyone really think the justice has yet to think through her decision? Isn’t the doomsday scenario of a 6- or 7-justice conservative bloc screamingly obvious to her? Should any of us really counsel Justice Ginsburg on her major life decisions?”
The mistake here, which Lithwick is also guilty of, is seeing this as a "life decision" for Ginsburg. There are much, much more serious issues at risk. Lithwick then writes that "it’s perverse in the extreme to seek to bench Ginsburg the fighter, simply because Senate Democrats are unwilling or unable to fight for the next Ginsburg." What makes Lithwick think that Democrats would not fight for the next Justice? Her only evidence is that they aren't fighting for a surgeon general nominee and a civil rights appointee, which are rather different jobs.
Lithwick relies largely on two other pieces about Ginsburg, one by her colleague Emily Bazelon. The really odd aspect of Bazelon's column is her contention that all this talk about Ginsburg retiring "isn't helpful," as if the role of journalists is to write things that are helpful, whatever that means. Bazelon acknowledges that if Ginsburg retires under a Republican president the court could move strongly to the right with "dreaded" results. But then she adds:
And then? Would We the People rise up and elect a Democratic president, who would then get to make his own slew of appointments? Would the left finally take the courts as seriously as the right has long known to? And if not, could we lay the blame on Ginsburg and Breyer—or would we all share in it?
Well, to answer her question, the country would share in the blame for electing a right-wing president. But since we know the country isn't perfect, and doesn't conform exactly to the wishes of Emily Bazelon, perhaps Ginsburg (and Breyer, who is younger), should retire now. Bazelon's argument is truly bizarre: If the people screw up, they will reap what they have sown! Somehow I don't think punishing women who want to control their bodies (for example), and who vote in Bazelon's preferred manner, is fair. Nor is it fair to punish people who care about regulating carbon, protecting voting rights, and controlling the influence of money in politics.
Bazelon and Lithwick both approvingly cite Linda Greenhouse, the New York Times writer, who said this:
I think from [Ginsburg's] perspective she is taking a long view of history, not a case by case one, or a term by term one. She has to believe that justice will win out in the end—or that, if it doesn't, her departure at one point or another couldn't be the major factor. I agree with her and I think people ought to give this issue a rest and concentrate on electing Democrats to the White House and the Senate.
Justice will win out in the end? What does that even mean? And what about the people who are focused on electing a Democratic White House and Senate, but also know that they don't control the entire country?
Moreover, it would be nice if Bazelon would stop accusing people of sexism without one iota of evidence. She writes, "All the 'Ruth, haven’t you had enough?' talk starts to seem a wee sexist." Starts to seem? That's a courageous formulation. She also adds, gratuitously, "Tell a strong woman what to do too many times, and she’ll tell you (politely, if you’re lucky) to stuff it."
Bazelon has some more attacks on those who want Ginsburg to retire, and adds that Ginsburg is "anything but" frail. Bazelon truly believes Ginsburg is not frail? Okay...
An even less convincing case for Ginsburg's retirement comes from Garret Epps in The Atlantic, also mentioned by Lithwick. Epps's argument essentially boils down to the following:
The lesson, if there is one, is that the timing of judicial resignation is a complex mix of ego, ideas of mortality, political fealty, and dynamics within the Court. Justices, I suspect, just don’t see the issue the way the rest of us do, as a straightforward matter of presidential elections and judicial votes.
But that's the point! The people who want Ginsburg to retire are arguing that Justices should see the issue differently. It shouldn't be about all the things Epps lists. Lithwick, meanwhile, perhaps revealing too much, writes: "Maybe Linda Greenhouse, Epps, Bazelon, and others are considered by the Ginsburg’s-got-to-go crowd as simply captive to the same 'justices aren’t political' brainwashing as Ginsburg, but maybe they just see Ginsburg through a different lens." Exactly. Journalists who cover the Court might take into account that fact that the feelings of nine people don't amount to a hill of beans. Epps continues:
And for that reason, I think publicly telling Ruth Ginsburg what to do would be bad manners and bad psychology. I wish this brilliant woman 100 years of life, whenever and however she leaves the Court. I only know I will miss her when she is gone.
The manners thing is too silly to respond to, but I join Epps in wishing Ginsburg a long life, and I am certain the country will miss her when she is gone. But these sentiments have no place in an op-ed. Matters of policy and people's lives are at stake, and, frankly, hurting the feelings of Justice Ginsburg is nowhere near the most important issue about her possible retirement.