The law operates with bright-line rules but also with balancing tests and concerns over image. The appearance of impropriety. The appearance of corruption. And so it is with lawyers, starting at the top.
Competing concerns must be weighed — personal health, institutional interests, legacy, longevity. And so, too, must appearances — of undue politicization of an entity supposedly above politics, of gaming the system for ideological ends.
I am referring, of course, to Justice Ruth Bader Ginsburg, who turned 81 last month, and the debate about whether she should retire, which seems fated to continue until she actually does. The flames of Ginsburg retirement talk were most recently fanned by her once-colleague, retired justice John Paul Stevens, who told ABC’s George Stephanopoulos that it was acceptable to take politics into account in deciding when to step down.
“I think so,” Stevens said. “I think certainly . . . it’s an appropriate thing to think about your successor, not only in this job.” He cited the recent memoir by former defense secretary Bob Gates. “He thought a lot about his successor . . . too. [If] you’re interested in the job and in the kind of work that’s done, you have to have an interest in who’s going to fill your shoes.”
But Stevens hastened to note that politics did not enter into his own decision to retire in 2010.
“Well, my decision was not made for any political reason whatsoever. It was my concern about my own health,” said Stevens, who at 94 is not only reading the Gates book but has just published his own rewriting the Constitution. If he is fading, we should all be so lucky.
Yet Stevens’s coyness is unsurprising. What retired justice has ever proclaimed: I gamed the system and quit in time for the president on my team to name a successor!
Supreme Court retirements are, and should be, a subtler enterprise, which is why the hue and cry for Ginsburg — and, next at bat, Justice Stephen Breyer — to make way for new (liberal) blood is so counterproductive.
Of course, it’s idiotic to imagine that any justice is insensitive to the identity of his or her successor. If, as Stevens observed, you care about your work, and every justice does, you have to care about who will pick it up — or dismantle it — when you are gone.
And while a new defense secretary matters, a new justice really matters. For one, defense secretaries come and go; justices stick around long after the president who appointed them.
For another, on a closely divided court, as this one is, a different justice can make an enormous and all-but-irreparable difference. The Supreme Court may not follow the election returns in issuing rulings, but Supreme Court justices certainly do in making retirement plans.
The late chief justice William Rehnquist acknowledged as much in a 1999 interview with PBS’s Charlie Rose. “That’s not 100 percent true,” Rehnquist said of whether justices mulling retirement are mindful about which party occupies the White House, “but it certainly is true in more cases than not, I would think.”
Admitting so is a different matter. The court may be, and it may be perceived by the public as being, a political institution, but this is not the way justices prefer to see it. They care about maintaining their own legacy but also about preserving the integrity of the institution. So they worry, properly so, about any move that would add to the appearance of politicization. The trick is to consider the successor without overtly seeming to.
Thus, the short-sightedness of the insistent yelping for Ginsburg to step aside and make way for another liberal — while a Democrat is still president, and, even more urgently, while Democrats retain control of the Senate. The louder the clamor for her departure, or Breyer’s, or the next justice down the line, the more difficult — the more unseemly it is — for them to leave.
The latest was a birthday push from University of California at Irvine School of Law Dean Erwin Chemerinsky, who advised Ginsburg via the Los Angeles Times that “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.”
I don’t think Ginsburg is inclined to go in any case; she seems to be having a grand time as the court’s senior liberal. Stevens may have offered some cover, yet calls like this are all but guaranteed to backfire.