Ruth Bader Ginsburg Should Do All Liberals a Favor and Retire Now

By Michael A Cohen, Guardian UK

15 February 14

The longer Ginsburg and Stephen Breyer wait to retire, the more likely a GOP president will pick their supreme court successors

uth Bader Ginsburg is one of the more important liberal litigators and jurists of her generation. She has been trailblazer on the issue of women's legal rights and a powerful voice for progressive causes as a justice on the highest US court in the land.

And she must retire. Right now. While we're at it, Stephen Breyer should retire too.

This call has nothing to do with either justice's job performance. Ginsburg's commanding dissent in last year's 5-4 decision to overturn a key provision of the Voting Rights Act is compelling evidence that she remains a vital member of the court.

But no longer is the decision of when to retire about them; rather it's about what comes after they leave the court. If Ginsburg and Breyer wait to retire, it will only serve to maximize the possibility that a Republican president will choose their successor and in the process undo much of what they've worked for their entire careers.

To be sure, I'm not the first person to make this argument and Ginsburg has publicly pushed back on talk of her leaving. What's changed in recent weeks, however, are new poll numbers that suggest Democrats are at very real risk of losing their majority in the Senate. While such an outcome next fall would be demoralizing for Democrats, it wouldn't have much of a policy impact. No matter who controls the Senate, House Republicans are hardly leaping at the opportunity to work with President Obama. It would, however, make it much harder for Democrats to fill the judiciary with progressive judges.

Even worse, it would increase the possibility that President Ted Cruz, Rand Paul or Paul Ryan might appoint Ginsburg and Breyer's replacements, which is a risk that, as liberals, they simply shouldn't be taking.

The argument for Ginsburg's early retirement is often predicated on her advanced age (she is 80) and her bouts with pancreatic and colon cancer (Breyer is 75. While the case for him to go is strong, it's not as strong as it is for his colleague). Leaving the court before the end of President Obama's term would allow him to choose their successors. These political calculations are based, in some measure, on when Obama's term of office ends in 2016. But what if Senate Republicans take control of the body in November?

Considering that Harry Reid was forced to employ the nuclear option against the filibuster to get Obama's lower court judges past Senate GOP obstruction tactics, does anyone really doubt that Republicans would block Obama's supreme court nominees? Unlike today where Republicans would have to take the unprecedented step of using the filibuster to stop a potential nominee, a GOP-controlled Senate could simply vote one down with a 51-vote majority. Democrats would have little recourse to stop them.

Then, if a Republican were to be elected president in 2016, they could put two conservatives judges in Ginsburg and Breyer's place, as well as choose new judges to replace Antonin Scalia and Anthony Kennedy, should they step down. The result would be a virtually unbreakable conservative majority on the court for the next 20 to 30 years.

The potential impact of this is hard to overstate. Two years ago, the court was one vote shy of overturning the signature piece of progressive legislation of the past four decades – Obamacare. This past summer, a 5-4 majority overturned key provisions of the Voting Rights Act and only the vote of Justice Anthony Kennedy allowed for the overturn of the Defense of Marriage Act. Liberals are already at a disadvantage on the court, with Scalia, Samuel Alito and Clarence Thomas voting in conservative lockstep and Roberts and Kennedy often not far behind. For liberals, swapping Ginsburg for a conservative judge would be catastrophic. Overturning the landmark abortion case, Roe v Wade, would be only the tip of the iceberg.

Of course, this scenario may not necessarily occur. The Senate while looking more and more likely to go red is still a toss-up and in 2016, Senate Democrats would be at a significant advantage with the GOP having to protect a host of vulnerable seats. And while it's certainly possible a Republican could win the presidency in 2016, the smart money is still on President Clinton II. Nonetheless, as President Gore will remind you, nothing about presidential elections is written in stone.

Even if there is a 10% chance that Republicans capture the White House in 2016 (and it's almost certainly much higher than that) there is simply no good reason for Ginsburg and Breyer to take that risk. Considering how politicized the Court has become – and the extent to which partisanship increasingly seems to trump judicial precedent – their membership in the liberal block is actually more important than their particular legal acumen.

Retiring now would allow President Obama to do what he's done with his first two supreme court picks – choose young, relatively progressive judges who will remain on the court for decades to come.

While it would be unusual to step down in the middle of the court's current session, Ginsburg and Breyer could announce their intention to retire in the summer and thus give the president and Senate Democrats plenty of time to get new nominees in place.

To those who argue that basing a retirement on political or ideological considerations would politicize the court … been there, done that. Unless, of course, people think it's a coincidence that liberal judges such as Harry Blackman, John Paul Stevens and David Souter retired while Democrats sat in the White House; and Sandra O'Connor and Warren Burger just happened to leave the bench while the GOP controlled the presidency.

When Earl Warren retired from the court in June 1968 it was done, in large measure, to ensure that Lyndon Johnson named his replacement – a gambit that ended up failing when the Senate refused to confirm his preferred successor Abe Fortas. The supreme court is a political body just like any other and they are hardly immune to the growing partisanship and polarization in American politics. There is no point in denying what is obvious to most court observers.

In an era of growing political dysfunction in which House leaders get praised for passing bills that were once largely considered pro forma (ie the debt limit), the Congress has become a black hole for social progress and reform. The courts and, in particular, the highest body in the land are ground zero for policy debates that will likely affect the lives of millions of Americans. With the make-up of the current nine justices in such a narrow ideological balance swinging it one direction or the other will have long-term implications – ones that Ginsburg and Breyer must factor into their thinking about when to step down. That moment is now.

No matter when she departs the court, Ginsburg will enjoy a sterling reputation as a progressive jurist. Breyer doesn't have the same esteemed standing, but from the perspective of liberals, he's been a strong and consistent progressive voice for nearly two decades.

Now the best thing they can do for the positions they hold dear, the issues they care most deeply about and the liberals that have long relied on them is to pass the torch.