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December 26, 2013 10:57 AM Should Ginsberg Retire?

By Seth Masket

I’ve got to disagree with Emily Bazelon’s take on Ruth Bader Ginsburg. Bazelon is defending Ginsburg’s right to stay on the Supreme Court from a number of legal and political critics who are urging her to resign while Obama is president and Democrats still control the Senate. Some, she notes, seem fixated on Ginsburg, although Stephen Breyer has been on the court just about as long and faces the same conundrum. Jonathan Bernstein is good enough to lump both of those justices in there:

There’s absolutely no question about it; if they want to secure the principles they have fought for during their careers, the best thing both of these senior liberal justices can do is to retire right now.

That strikes me as pretty compelling logic. But Bazelon takes another stance, that justices should not be so nakedly political. After all, the judiciary is designed to be the branch most insulated from politics, and life appointments are a big component of that. If one cares about liberal priorities and their protection by the Supreme Court and values constitutional traditions, says Bazelon, one should spend his or her time working to elect Democrats rather than pressuring justices to resign strategically.

As I see it, it’s perfectly defensible for liberals to take one of these two viewpoints: 1) Elderly justices (particularly those with a history of cancer) should retire strategically so that the president can appoint younger people to protect their agenda; 2) Justices should not resign strategically but should rather serve until they die or are no longer capable of doing the job. But Bazelon throws in a third view:

She [Ginsburg] has made it more than clear that she isn’t going to retire because columnists and law professors think she should. Tell a strong woman what to do too many times, and she’ll tell you (politely, if you’re lucky) to stuff it.

That is, a strategic resignation might actually be the right thing to do, but asking Ginsburg to do it is counterproductive, since it just makes it less likely that she’ll do it. That doesn’t paint Ginsburg in the best light! Nor do Ginsburg’s own recent comments that liberals have nothing to worry about since Democrats do “just fine” in presidential elections. (I suppose that’s true if “just fine” means winning about 50% of the time.) It’s one thing to be resistant to political pressure or even deaf to it; it’s quite another to ignore historical evidence or stubbornly do the opposite of what one’s ideological allies have asked one to do. Some might even call that a betrayal.

[Cross-posted at The Mischiefs of Faction]

Seth Masket is an associate professor of political science at the University of Denver.

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