ChrisWeigant.com

Not Justice Ginsburg, But The Two After Her

[ Posted Wednesday, April 23rd, 2014 – 17:10 UTC ]

The people who see everything through the lens of partisan politics are currently playing a rather crass game which might be called "guess the date of Justice Ruth Bader Ginsburg's retirement." We'll get to the reasons for playing this game in a bit, but first the point must be made that Justice Ginsburg can stay right where she is for as long as she damn well feels like it. Which is entirely how it should be. Short of impeachment, the decision is hers and hers alone, as the Constitution demands. It matters not one tiny bit what anyone else thinks about her decision, which includes bored pundits looking to stir the partisan pot a bit in a slow news week.

Federal judges are appointed for life. There's a reason for this, and the reason is to avoid politics on the bench. An incoming presidential administration can legally fire all the lawyers in the Justice Department if it so chooses, but it cannot fire a single judge. This gives the judges themselves more independence from politics than anyone else in high office, which is exactly what the lifetime guarantee intended in the first place. Of course, judges can resign at any time, but the decision is solely theirs to make. And they are free to consider -- or not -- the political implications of the timing of their resignation, as they see fit.

Part of what sparked the recent conversation over Ginsburg was that former Justice John Paul Stevens was asked whether she should take politics into account when deciding when to retire (Stevens has a new book out, and was in the midst of a media tour to promote it when asked the question). What I found interesting in the interview was Stevens admitting that what convinced him to retire was what might be called a "senior moment" when reading a decision from the bench. He feared his mental capacities were in question, and did the honorable thing by stepping down. That's one good reason to resign, although it doesn't have to be the only one, Stevens essentially said. Which was a polite way for him to say that Justice Ginsburg is the only one who can make such a decision, for whatever reasons she feels are appropriate. This includes politics. If a judge feels like stepping down for political reasons, he or she is free to do so. He or she is also free to admit this or not in public.

The politics in question for Ginsburg might be called either "pessimistic" or even "cowardly" for the Democrats. The reason some Democrats are openly speculating about Ginsburg stepping down right now are entirely political and hinge on the next two elections. What will the makeup of the Senate look like after this year's elections? Which party will control both the White House and the Senate after 2016? The pessimism enters the equation because Democrats are not at all confident they'll still be in the majority in the Senate come next year. And there's no guarantee that a Democrat will sit in the White House after the 2016 election, either. Since presidents nominate Supreme Court justices and the Senate confirms them, this could mean that the window for getting a liberal Ginsburg replacement confirmed could be fast closing. Which is why the whispering has begun as to whether she'll step down after the court finishes this year's business.

If Ginsburg does step down this summer, the thinking goes, then President Obama will be able to name a replacement and have him or her confirmed before the midterm election. Ginsburg is 81 years old, after all, and she'll have to step down sometime or another, so why not now when a replacement can be easily confirmed? In the worst-case scenario, if Republicans take the Senate this year then they may be tempted to block any of Obama's Supreme Court nominees from being confirmed, partly as payback for Harry Reid getting rid of the filibuster on all other presidential appointments. This might have been seen as some far-fetched scenario in the past, but these days the atmosphere in Washington is so poisonously partisan that it is now well within the realm of possibility. It would provoke a constitutional crisis of sorts (especially if the standoff went on for two years), but it would likely delight the Republican base voters and those Republican politicians who have been itching to pick such a large fight with the president for years. Republicans would be gambling, in essence, that they could win the White House in 2016 and then appoint a conservative, instead of whomever Obama nominated. This is pretty pessimistic for Democrats. By calling for Ginsburg to retire they are signaling how nervous they are over their chances of holding the Senate. If they hold the Senate, after all, there would be no political reason for Ginsburg to retire for the next two years.

Supreme Court justices are some of the most powerful officials in American government. But the balance of this power is where the biggest battle is going to be fought, even if such speculation requires a lot more optimism from Democrats. So far, Obama has gotten the opportunity to appoint two justices. These replaced two liberal justices on the court. The balance of power remained exactly the same, though: four liberals, four conservatives, and one swing vote. Ginsburg stepping down and being replaced by Obama would also not change this ratio.

The real fight is going to happen when a conservative either dies in office or steps down. Ginsburg is currently the oldest sitting member of the Supreme Court. But not far behind her are three others: Stephen Breyer (who is 75 years old), Anthony Kennedy (77), and Antonin Scalia (78). Breyer is a liberal, so if he stepped down with Obama (or another Democrat) in the White House it wouldn't change the power balance. But Kennedy is the current swing vote, and Scalia is extremely conservative. If either Kennedy or Scalia were to resign or die in office and the Democrats held the presidency, there will be a confirmation fight the likes of which Washington hasn't seen for quite a while. Even replacing Kennedy with a staunch liberal would shift all of those 5-4 decisions to lean always in the liberal direction, rather than swinging back and forth as they do now. If Scalia were to leave office, this would be even more consequential since it would be a clear gain by liberals. If both Kennedy and Scalia were replaced by President Obama (or, perhaps, President Hillary Clinton), then the court's makeup would then be: six liberals, three conservatives, and no swing votes.

Obviously, this would usher in a new day for the Supreme Court. Some of the worst decisions of the past three or four decades might soon be up for review, to put this another way. If the next president is a two-term Democrat and Democrats also hold the Senate, this could very likely be the eventual outcome on the Supreme Court. So while it is amusing now to play the political parlor game of wondering when Ginsburg will retire, it really won't be that momentous for the Supreme Court as a whole. Also, Ginsburg is free to stay on the court as long as she pleases, no matter what the chattering classes think about it. The Constitution gives the choice to her without reservation or restriction. If Ginsburg does leave office while Democrats hold the White House and the Senate, she will be replaced by a younger liberal. The balance of power won't shift at all.

The next two to step down, however, might be groundshaking in importance. Imagine, if you will, Supreme Court news items regularly beginning with: "In yet another 6-3 decision...."

-- Chris Weigant

 

Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant

 

6 Comments on “Not Justice Ginsburg, But The Two After Her”

  1. [1] 
    LewDan wrote:

    Interesting that you preface this post praising the wisdom of lifetime appointments to promote an apolitical judiciary when the post itself is devoted to the impact of Justices' political partisanships. Apparently without awareness of the contradiction.

    Lifetime appointments IN CONJUNCTION WITH a POWERLESS court were intended to keep politics out of judicial decisions. When the court decided to gift itself with the political power to make its decisions determinative, instead of merely advisory, it became, by definition, "political."

    And because the court made itself inherently political lifetime appointments do not, and cannot, prevent, or even inhibit, politics in court decisions. Rather they merely insulate Justices from any accountability, leaving us worse off than if they were elected or appointed.

    Republicans were the first to truly recognize reality and seek to capitalize on it by devoting themselves for half a century to packing the court with "conservative" justices. A plan which finally came to fruition under George Bush giving us our current court which is so partisan rampant speculation on the "timing" of resignations and the effect on the court of appointments by "liberal" vs "conservative" Presidents occur without anyone apparently even noticing that the court is SUPPOSED to be objective and apolitical.

    A court that's an unelected, uncontrollable, unaccountable extension of whichever party happened to hold the Presidency, and/or control the Senate when vacancies arose is worse than useless. Instead of getting nonpartisan opinions we get irresponsible ones, with The People having NO say in the laws governing them. The whole point of founding this nation was to repudiate and prevent exactly that.

    The idea of filibustering nominees to manipulate even the party that gets to appoint Justices, and the indifference the concept apparently generates, simply illustrates that both the vision of the founding fathers, and the constitution which was supposed to implement it, are both long dead. Thanks to the "vigilance" in protecting our freedoms by a public, and media, that are, oh, so concerned! at the prospect of the NSA knowing who we're telephoning, but totally unconcerned over unelected lifetime appointees invested with unlimited power.

    Forgive my going off-topic, but to my mind the entire debate is a gross example of the old cliche "can't see the forest for the trees."

  2. [2] 
    Paula wrote:

    LewDan: yep! Couldn't agree more.

  3. [3] 
    Elizabeth Miller wrote:

    LewDan,

    Interesting that you preface this post praising the wisdom of lifetime appointments to promote an apolitical judiciary when the post itself is devoted to the impact of Justices' political partisanships. Apparently without awareness of the contradiction.

    You're not seriously suggesting that term limits for the judiciary would be less political, are you?

    I mean, let's face it, next to nothing these days is apolitical. But, lifetime appointments to the judiciary in general, and to the Supreme Court, in particular are far less political than any other option I can think of.

    Are you saying that judges should be elected?

  4. [4] 
    Elizabeth Miller wrote:

    Lew Dan,

    Interesting that you preface this post praising the wisdom of lifetime appointments to promote an apolitical judiciary when the post itself is devoted to the impact of Justices' political partisanships. Apparently without awareness of the contradiction.

    You're not seriously suggesting that term limits for the judiciary would be less political, are you?

    I mean, let's face it, next to nothing these days is apolitical. But, lifetime appointments to the judiciary, in general, and to the Supreme Court, in particular, are far less political than any other option I can think of.

    Are you saying that judges should be elected?

    (Sorry for the duplication but, I was missing a couple of commas. Heh. )

  5. [5] 
    TheStig wrote:

    Baring impeachment and conviction, Justice Ginsberg can stay in her seat for life. Still, the political insulation of the institution and its individual members is imperfect.

    Congress has the power to prune the number of seats or add more. Both options have been exercised, and the size of the court has varied from a low of six (initially) to as high as ten (briefly).

    Congress can also choose not fill a seat. Or fill it with Clarence Thomas, whose seat often seems mostly vacant.

    The rich and powerful enjoy hobnobbing with The Supremes and ply them with food, drink, games transportation and honoraria. The Supreme Court has no Code of Ethics (yet).

    In short, no Justice is a political island.

  6. [6] 
    Mopshell wrote:

    LewDan,

    Interesting that you preface this post praising the wisdom of lifetime appointments to promote an apolitical judiciary when the post itself is devoted to the impact of Justices' political partisanships. Apparently without awareness of the contradiction.

    That is exactly what I was thinking as I read this post. Only in this last week I'd read an explanation of why Supreme Court Justices were given a lifetime position in the Constitution and thought then "Well, that isn't working now, is it!". The blatant partisanship of appointments resulting in overt, uncontrollable and unaccountable partisanship of majority decisions, cheerfully waves the banner of corruption without fear of consequences.

    I discovered in my rambling researches that only one Associate Justice has ever been impeached (about a century ago) but none has ever been removed so the current sitting Justices can feel very secure about their tenure, no matter how outrageous their rulings are, or their speech or behavior, in spite of the Constitution's shall hold their offices during good behaviour clause.

    As much as I like TheStig's suggestion of a code of ethics, I doubt that this would make any more difference than the good behaviour mentioned in the Constitution. Impeachment is a no-go since the only way it could possibly work is if both the House and Senate had opposite partisan majorities to that of the Justice targeted. Besides, it just wouldn't be in any way a good thing to do - no positives there for anybody unless the Justice had committed, and been found guilty of, a high crime.

    So what to do?

    Elizabeth,

    You're not seriously suggesting that term limits for the judiciary would be less political, are you?
    I wouldn't favor term limits either as the beginning and end of terms would likely coincide with either the election of a third of the Senate or the President or both. I can only see a seesawing trend in Supreme Court partisanship arising from that, with a resultant carousel of rulings followed by reviews. Dizzying!

    Instead, I favor a mandatory retirement age with Justices free to choose to step down any time before that, according to their personal decisions. It isn't ideal either but it's better than any previous alternative I've looked at.

    It also has one great advantage, highlighted for me by former Justice Stevens who admitted that what convinced him to retire was a "senior moment" when reading a decision from the bench. I'm not so confident that all of us recognize, or admit to, the first signs of "senior moments" let alone act upon them before they become "the senior phase" with such frequency of "senior moments" that they blur into one another.

    In the comments sections following CW's How Would You Amend The Constitution? and FTP[301] - Seven More Amendments, I posited the idea of mandatory retirement at age 60. After a brief mental tussle with the figure, I finally settled on 60 as an age at which all intellectual faculties are likely to be in very good order and, more importantly to my mind, they would have earned enough by this time to retire comfortably if that's what they chose to do.

    I sense contention coming and, while this is the best suggestion I have at the moment, I am very willing to consider other ideas. :-)

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