Erwin Chemerinsky, the liberal (are there any who aren’t?) dean of University of California at Irvine’s law school, recently wrote to tell Supreme Court Justice Ruth Bader Ginsburg her days are numbered so she should get off the court before she dies. No, really, he did. He opines: “She turned 81 on Saturday and by all accounts she is healthy and physically and mentally able to continue. But only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values.” Regardless of what you think of Ginsburg (or of Chemerinsky), this is a rotten, obnoxious suggestion.
First, on a human level, it’s disgraceful to tell an older person to stop doing what they are doing because they might keel over any day. If Chemerinsky’s parents are living I’m sure he would be offended if someone told one of them to get out of the way before they croak on the job. Former Colorado governor Richard Lamm got in a heap of trouble when he opined that rather than undertake life-prolonging measures the elderly have “a duty to die and get out of the way. . . . Let the other society, our kids, build a reasonable life.” It is quite simply an affront to human dignity to predict the timing of another person’s death and tell them to make room for others for the good of society.
Second, it’s already too late, to be politically crass about it. Senator Harry Reid (D-Nev.) left intact the filibuster for Supreme Court justices and you can bet GOP senators would block a nominee they consider inappropriate whether or not they control the majority.
Third, Chemerinsky does a disservice to litigants and to the country who, if he believes she’s such a great justice, would be deprived of her wisdom by a premature retirement. What if the new justice is a dud? In any case, she seems to be performing her duties just fine for now; a resignation might leave the court without a ninth justice for some undetermined period of time.
Fourth, Chemerinsky crudely assumes he and other liberals have Ginsburg in their pocket. He asserted, “Some might question whether a justice should be so calculating in choosing when to retire. But not doing so ignores the reality that ideology matters enormously in Supreme Court decision-making. This is nothing new; ideology always has mattered, and which president fills vacancies on the court can have an impact for decades.” Whatever presidents do, the justice herself has an obligation to consider each case and judge it on the merits; her resignation would be a concession that her votes are preordained and that she no longer is capable of delivering impartial decisions. (Cynical conservatives might agree, but from Ginsburg’s perspective it would be a confession of bias.)
Fifth, you never know who you will get. Chief Justice John Roberts delivered the fifth vote to uphold Obamacare. Moreover, given Republican presidents’ mixed records in appointments (e.g. Chief Justice Earl Warren, Justice John Paul Stevens, Justice David Souter) Chermerinsky and his fellow liberals might do just as well with a GOP president’s appointments.
Sixth, 81 years old may be the new 71. Justice Stevens served until he was past 90. Who’s to say Justice Ginsburg won’t serve another 10 years?
And, finally, Chemerinsky plays politics at his peril. The better “bet” if he wants to go down that road might be to wait for a new Democratic president who would have the muscle to get through a justice to Chemerinsky’s liking.
In sum, Chemerinsky is too clever by half, and has revealed himself as a crass political operator rather than a respectful litigant and professor of law. Justices should serve as long as they are able; that was the Framer’s desire. To force retirements to jigger the “politics” of the court goes one step further down the road of discrediting the institution. Clients might not want Chemerinsky litigating on their behalf so long as Ginsburg is there; it might be, you know, sort of awkward.