Writing in Mother Jones, Stephanie Mencimer critiques the cult of Notorious RBG:
But no amount of swag or hagiography can obscure the fact that, while Ginsburg is responsible for a great number of landmark legal decisions, her legacy may be sorely tarnished by one truly terrible one: refusing to retire when President Barack Obama could have named her replacement.
Mencimer surveys the arguments that begin in 2011 urging Justice Ginsburg to resign while Obama was president and Democrats controlled the Senate, beginning with Randall Kennedy's article in The New Republic:
Kennedy held up his old boss as a cautionary tale. Marshall’s health problems forced him to retire during the administration of George H.W. Bush, who replaced the legendary civil rights lawyer with Clarence Thomas, a conservative ideologue who has spent his 27 years on the bench working to unravel virtually everything Marshall fought for. “[I]f Justice Ginsburg departs the Supreme Court with a Republican in the White House,” Kennedy wrote, “it is probable that the female Thurgood Marshall will be replaced by a female Clarence Thomas.”
She also quotes the justice's defenders:
Yet back in 2013, when the drumbeat for Ginsburg’s retirement was at a fevered pitch, Emily Bazelon wrote in Slate that urging the then 80-year-old cancer survivor to retire was perhaps sexist and counterproductive. Dahlia Lithwick, also in Slate, argued that it was insulting to suggest that Ginsburg, who remained so sharp on the bench, was “determinedly unaware of the political world she inhabits.”
And of course, Ginsburg's own response, in a New York Times interview with Adam Liptak:
“There will be a president after this one and I’m hopeful that that president will be a fine president,” she said. Ginsburg added that she planned to keep working “as long as I can do the job full steam.” The only evidence she could see that she’d slowed down by her age, she said, was that she’d given up water-skiing and horseback riding.
In a recent tweet, Linda Hirshman pretty much summed it up:
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Linda Hirshman (@LindaHirshman1) |
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@JamesFallows I did not say it, when I was writing her bio in Sisters in Law, because commentators had made the subject so toxic, and criticizing RBG was not in my book interest. But it was obvious to any sensible liberal that what she was doing was selfish and so dangerous. |
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Of course, there is still hope that Justice Ginsburg can stay on the SCOTUS bench beyond the Trump presidency, despite her recent fall that resulted in three cracked ribs. Irin Carmon, coauthor of The Notorious RBG, and, as Mencimer put it, one of the people most responsible for the cult, assures us that there is nothing to worry about:
“I am not RBG’s doctor, but I am one of her biographers, here to testify to her resilience,” Carmon wrote in The Cut. To reinforce her point, Carmon interviewed Bryant Johnson, Ginsburg’s longtime personal trainer, who said, “To all the stressed-out people in America, remember that the justice is TAN. Now, I always use that acronym: TAN. She’s tough as nails. You think three ribs are going to stop Justice?”
Real doctors think differently. Jeremy Samuel Faust, an emergency physician at Harvard's Brigham and Women's Hospital, explained in Slate that falls by the elderly are often a "catalyst for future complications."
Given this, her age, and the fact that she likely takes blood thinners (standard practice for patients with cardiac stents, like the one she had placed in 2014), it must be acknowledged that, statistically speaking, her risk of developing dangerous and even deadly complications in the short term is alarmingly high, perhaps exceeding 50 percent.
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While it is becoming more widely known just how dangerous falls are to elderly patients, what is perhaps still less appreciated is how meaningful the event can be for diagnosis. To borrow a phrase from poker, it’s a tell. When someone falls and the story doesn’t quite add up to a strictly mechanical fall, some degree of medical work-up often becomes necessary. We don’t do every test on every patient (that’s wasteful and even harmful), but we do try to home in on what clandestine risks may be at play. Has the patient been experiencing nausea? The fall may be a sign of dehydration. Has the patient been coughing? It could be early influenza or pneumonia. A careful interview with a forthcoming patient can help doctors understand what is really going on beneath the surface, which allows them to propose treatment options.
You can read the whole depressing article here.
Post hoc hogwash, mostly.
American Democrats thought the heir apparent would win the 2016 election in a landslide. Why hold RBG to a different standard in this regard?
Regardless, her true legacy involves her work's leading to the rest of the West's loss of interest in SCOTUS. Nothing can be learned or gleaned from someone lacking a genuine jurisprudence, i.e., where anything that advances social justice in the case at hand IS the best and true meaning of the constitution.
The comment above is so true.
The Mencimer quote succinctly sums up the reasons that recent leftist outrage about referring to "Obama judges" was the epitome of hypocrisy.
I agree with firelock’s first comment, in substance if not in tone. Justice Ginsburg did not retire because she, along with most others, believed there was a near-zero chance that President Trump would be elected. Post-hoc attacks now on her judgment at that time is only fair to the degree that you thought that at the time she was wrong.
The argument isn't that Ginsburg should have retired in 2015 (that would have just given Trump/Clinton 2 nominees). It is that she should have retired in 2011 or so, when Trump was a TV star and the next election was anyone's guess.
When RBG retires, my personal wish is that she be replaced by someone with a similar judicial philosophy. But she's entitled to her job for as long as she wants to do it. And I'd never tell her to retire sooner than she wishes to.
There is always a risk of a change of party control, either in the White House or the Senate (it is not clear a President of one party will ever again appoint a Justice with a Senate majority of the other party). So at what point should a Justice begin thinking of retiring to avoid this problem? Is it time on the bench? Is it age–and if age, how old? Ginsburg was 60 when appointed and 68 in 2000, when the prospect of a change loomed? Should she have considered retiring then?
In 2013, Barack Obama was president and the Democrats had just held on to a slim majority in the Senate. Justice Ginsburg was 80 years old and a multiple cancer survivor. That's when she should have considered resigning.
"I'd never tell her to retire sooner than she wishes to"
That may hold true when the job in question is librarian, banker, or teacher. But when failure to retire could easily result in one's life work being rescinded, and millions of people affected by that prospect, then it is not so simple as a matter on individual choice. It is a public trust.
'The argument isn't that Ginsburg should have retired in 2015 (that would have just given Trump/Clinton 2 nominees). It is that she should have retired in 2011 or so, when Trump was a TV star and the next election was anyone's guess'.
False. The article claims that such calls only began in 2011 and continued thereafter. How many people, however, were in fact making this argument in 2011 other than Randall Kennedy? The article does not say. It is by 2013, Mencimer tells us, that 'the drumbeat' for her retirement was at 'a fevered pitch'. Again, how many were actually, regularly, beating on the drum? A handful? Dozens? Hundreds?
Once again, this is mostly just post hoc hogwash.
Don't get me wrong, though: I fully agree that she ought to retire post haste.