Ginsburg and Breyer: Liberals Seek to Replace Justices Before a Conservative President Does It for Them
She'll Know When To Go
Liberal activists are calling on Justice Ginsburg, at least, and, hopefully, Justice Breyer to resign. Not because they're incompetent and unable to do their job, but because they are worried that if the 80-year old two-time cancer survivor Ginsburg and the 75-year-old Breyer cannot make through a hypothetical Republican presidency in 2016, and these liberal justices will be replaced by a conservative President who will nominate conservative justices who will in turn move the law in a more conservative direction.
As an initial matter, the liberal activists should simply leave Justice Breyer alone. He is only 75, shows no signs of ill health and would only be 77 in 2016. There is no reason to think he cannot make it until 81, young for a Supreme Court Justice. Indeed, Justice Breyer has been writing important, vigorous dissents in hot-button cases involving affirmative actions, gun control and abortion. Theses dissents may in the future become majority opinions. Justice Breyer is probably the smartest of the old guard liberals on the Court (Justice Kagan is probably the smartest justice on the Court, period) and the liberals should be happy to have him there.
And lest conservatives get on their hypocritical high-horse, let us remind them that justices often retire strategically so that there is a better chance of ideologically similar replacement. Chief Justice William Howard Taft once wrote: "I am older and slower and less acute and more confused. However, as long as things continue as they are, and I am able to answer in my place, I must stay on the Court in order to prevent the Bolsheviki from getting control." Indeed, political scientists have found that justices of all stripes retire strategically.
Ginsburg, for her part, is fighting back against those calling for her retirement. In answering a question regarding the call for her retirement she cited to liberals Justice William Brennan and Justice Thurgood Marshall as being replaced by President George H.W. Bush. Justice Marshall is a particularly poor example for Justice Ginsburg to cite to: by all accounts, Marshall hung on well after he was able to competently do his job, at the end, delegating all opinion writing to his clerks and simply asking which way Brennan voted and telling his clerks to follow his lead. A sad end to an otherwise distinguished career.
All that these liberal activists are accomplishing with their Daily Kos echo-chamber is allowing some conservative columnist at the National Review to start ginning up a column about the liberals, abortion-on-demand, talking point, talking point, etc. Yes, the Justices are political animals in part -- though this claim can be far overstated -- and, yes, Republicans will soon be telling Justices Kennedy and Scalia to retire if a Republican wins in 2016. But all this chatter does is add to partisan rancor. Give the Justices some credit, history shows they know when to go.