Why Didn't Justice Ginsburg Resign in 2014?

There are many good reasons – both humane and political – to wish Supreme Court Justice Ruth Bader Ginsburg a speedy and complete recovery from her recent lung cancer surgery. Nor is it cynical to hope that she returns to good health at least through the end of the Trump presidency, which looks to be January 20, 2021, at the earliest. That hope, of course, brings with it an inevitable question: Why didn’t she resign in 2014, when Barack Obama was president and Democrats still controlled the Senate? At the time, Ginsburg was 81 years old and had already been through two rounds of cancer surgery, yet she famously said that she would stay on the job as long as she could do it “full steam.” In a recent Slate interview, Dahlia Lithwick provides some well-informed speculation about Ginsburg’s reasoning.

According to Lithwick’s sources, Ginsburg declined to retire out of resistance to sexism. After all, “nobody was demanding that John Paul Stevens retire,” and he was 90. That would indeed seem to be a double standard, except that there was actually no need to urge Stevens’s retirement. He announced it himself on April 9, 2010, four years before anyone began questioning Ginsburg’s intentions. Justice David Souter had been even quicker to ensure that Obama would get to name his successor, announcing his own retirement on April 30, 2009, at age 69. It is true that Justice Stephen Breyer was not called upon to resign during the Obama administration, but he is five years younger than Ginsburg and has not battled cancer.

There has in fact been a long history of male justices resigning during the administration of a politically aligned president. Ginsburg herself had to be aware of this tradition, because it was responsible for her own nomination.  Justice Byron White, who had been appointed by President Kennedy, resigned on March 19, 1993, only two months after he’d administered the oath of office to President Bill Clinton. That allowed Clinton to name Ginsburg as White’s successor, making her the first Democratic appointment to the court since 1967. White was only 75 year old and in good health, but he took the first opportunity to allow a Democrat, after such a long hiatus, to nominate his replacement.

Eighty-six year old Harry Blackmun, a Republican appointee who had become a leading liberal, quickly followed White’s example. He also announced his retirement during Clinton’s first term, on April 6, 1994, in advance of the midterms that would give Republicans control of the Senate.  Chief Justice Earl Warren, at age 77, attempted to leave the court during the Johnson administration, announcing his resignation in June 1968, to be effective upon the confirmation of his successor.  He was thwarted, however, when a Senate filibuster blocked Johnson’s nomination of his Texas crony, Abe Fortas, thus allowing President Nixon to appoint Warren Burger as Chief Justice in 1969.

Conservative justices have adopted the same strategy. Anthony Kennedy is the most recent example, having announced his resignation, one month before his 82^nd birthday, during President Trump’s second year in office. Nixon appointee Lewis Powell resigned during the second Reagan administration, at age 86, at a time when it still appeared as though Democrats might win the 1988 presidential election.

But Lithwick also points to the cautionary example of Justice Sandra Day O’Connor, who resigned sooner than she wanted to, in order to accommodate Chief Justice Rehnquist’s own retirement plans. As Lithwick explains it, O’Connor originally intended to resign in 2006, in order to care for her ailing husband, but Rehnquist, who was very ill with thyroid cancer, persuaded (or pressured) her to move it up a year, to 2005:

And then this is the kind of the weird feminist bit: Chief Justice William Rehnquist says to her, “Actually, no, I’m going to retire next year, so you should go now.” And he says to her, “Because you can’t have two in the same summer.” There’s just a core tradition that two confirmation hearings is too much of a jolt to the public system. So he says to her essentially: “Don’t do it next year; I’m going to do it next year; you do it now.”

The irony, however, is that Rehnquist died shortly after O’Conner announced her retirement at age 75, and there actually were two confirmations (Justice Alito and Chief Justice Roberts) in 2005. The story gets sadder with the abrupt decline of O’Connor’s husband, who soon became institutionalized and unable even to recognize her.

Lithwick thinks that Ginsburg was deeply influenced by O’Connor’s resignation “before she was ready,” evidently meaning that she could have spent more productive years on the Court. But was that really the case? O’Connor’s original plan was to retire in the summer of 2006, which would have been before the mid-term elections that returned the Senate to the Democrats. For all of her swing votes, O’Connor was always a committed Republican, so George W. Bush might well have gotten the eventual appointment even if she had stuck to her timetable.

Even if O’Connor’s premature resignation has been, as Lithwick puts it, “playing in the back of Ginsburg’s head,” there is still a more important question: Why should any justice’s personal readiness take precedence over the future rights and welfare of every American citizen? There can be virtually no doubt that a hypothetical Obama appointee, named in 2014, would be more progressive than anyone Trump is likely to nominate this year or next. O’Connor’s resignation has a lesson for the liberals on the Supreme Court, but it is not the one Lithwick attributes to Ginsburg. SCOTUS seats are transitory by nature; no individual justice is indispensable; and your successor is your legacy.

If a Republican dominated Supreme Court overrules Roe v. Wade in 2021, no one is going to applaud Ginsburg’s extended tenure as affirmation of feminism.

Comments

[For to buy a firelock]

"If a Republican dominated Supreme Court overrules Roe v. Wade in 2021, no one is going to applaud Ginsburg’s extended tenure as affirmation of feminism."

Except for Conservative pro-lifers, that is, who will (correctly) see it as a vindication of their worldview and critique of the ideology in question. :)
E.g., the recent Vermeule piece. Cf. Houellebecq's Submission.

[PaulB]

Abe Fortas was not LBJ's Texas crony. He grew up in Memphis but became a Washington D.C. fixture for many years. He was a key adviser to LBJ along with Phil Graham during the 1950s and for his run for the nomination in 1960. What you may be thinking of is that Johnson nominated Texas federal judge Homer Throneberry to replace Fortas as Associate Justice.

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

...and if Roe is overturned, so what? Let me tell you what will happen. We will have States like Illinois. Savvy "women's health care providers" will erect billboards near Sikeston, Missouri where I-55 and I-57 meet just outside of Boom Land advertising "AFFORDABLE" Women's Health Care with Easy Payment terms and of course Visa/MC with licensed physician available. Twenty miles, left at Exit 1. There will be You Tube Videos, like changing the cabin filter on a car... Or in a backwards Red State, there will always be some MD or Nurse with an addiction who needs CASH NOW to assist with your "procedure."

[Howard Wasserman]

The story I had heard about O'Connor was that she wanted to go *sooner* than she did, but was dissuaded by Rehnquist. Then Rehnquist's death in summer 2005 required O'Connor to stay an additional several months into OT2005, depriving her of the limited remaining time with her husband.

[Hon. Alexxander Octsoc, Ret. Justice, Supreme Soviet Judicial Courts, USSR]

This is America and that's none of anybody's damn business. This is taboo..."Go away, you're not needed. Why doesn't anybody who seriously suggests this course resign themselves? There are thousands and thousands of younger (and older) attorneys who are having difficulties finding adequate legal work in this oversaturated market. Almost 2 million lawyer are rising!!!

[Joshua Kastenberg]

Abe Fortas was a close advisor to LBJ and represented him in the contested Democrat primary in 1948 where LBJ "eked" a victory over Coke Stevenson. It may be that Stevenson's vote getters were as questionable as LBJ's, but Fortas was able to find a willing Justice Hugo Black to put a stay on any recount, and by the time the Court would have reconvened to hear an appeal, LBJ's name was the Democrat nominee. In 1948, this (the primary) was the Senate race. Once LBJ came into office he relied on Fortas to advise him on foreign policy such as U.S.- Dominican Republic relations and Vietnam policy. This continued once Fortas was confirmed to the Court. It was a very questionable relationship in the sense that the separation of powers lines became blurred. Also, before Fortas' judicial appointment, he represented Robert "Bobby" Baker at LBJ's behest, until a conflict of interest arose.
Perhaps this might account for the term "crony" - although I suppose one can define the term how one wants.

[anon]

The "notorious RBG" is a creation of the left: a combination of wishful thinking and just plain old delusion in an age of desperation where, frankly, leftists, too, aren't very attractive, aren't very principled and aren't very inspiring.

The "Great Dissenter"? Please.

The left delights in her every utterance that besmirches a Republican politician or fellow justice, and basically behaves as if she were an oracle of truth and justice, when, in a fact, as a recent profile in the Atlantic noted, she is not the firebrand revolutionary that the left wishes to believe her to be.

Her refusal to retire has nothing, IMHO, to do with vindicating feminist principles. I fear that this putative deity perhaps has a bit more of her own motives than her leftist worshippers would care to admit. Sort of like that scene in the "Man Who Would be King" when the people realize who the person on the throne really is.

[Skeptic]

I'd give RBG ten years of my life right now if I could, but she is, at the end of the day, a selfish and irresponsible individual.

[Hedley Lamarr, Car Wreck Counselor at Law, CALL 1-800 BIG CASH NOW!]

^^^She made a choice that she is legally, morally and ethically entitled to make. I stand with her 100%. People are not disposable because they don't fit or conform to your world view of how things ought to be. Speaking of "selfish and irresponsible," has Clarence Thomas ever paid for those Corvette tires he accepted?

[Not Sure]

Why do we think that McConnell would have allowed a replacement to be put on the court in 2014 any more than in 2015? He would have held out till Trump was elected regardless of if / when Ginsburg retired.

[Anthony Gaughan]

In response to your question, Not Sure, the Senate Democrats held a 53-seat majority (plus two independents who caucused with them) in 2014. Republicans did not take control of the Senate until January 2015.

Accordingly, I think it likely that Harry Reid would have been just as effective at getting a nominee confirmed in 2014 as Mitch McConnell was with an even smaller majority in 2017 (Justice Gorsuch) and 2018 (Justice Kavanaugh).

[anon]

Steve

Seems like you are very protective of the one posting under all those names ... You allow his drivel to remain, but delete the only way to address it: with the same ridicule and derision that his comments exude.

One has to wonder: is there a connection?

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

Oh my god, Professor Lubet. We have been exposed as colluders!!! Anne Coulter there above^^^^figured it out. We took a secret road trip to Ohio, Pennsylvania, Wisconsin and Michigan and voted for Jill Stein in each state multiple times!!!

Thanks for reading my "ridicule and derision." It appears when I punch hard left or satirically tell it like I see it, it brings about these posts and have the feel of personal attacks. Try engaging me or us in a good debate. All of my posts are relevant to RBG or Roe. Join us.

[anon]

Right, like this one:

"This is America and that's none of anybody's damn business. This is taboo..."Go away, you're not needed. Why doesn't anybody who seriously suggests this course resign themselves? There are thousands and thousands of younger (and older) attorneys who are having difficulties finding adequate legal work in this oversaturated market. Almost 2 million lawyer are rising!!!"

Brilliant! Your "readers" are a true "asset" to you, I'm sure, because of the coherent way you make sh.. up and spew your bs.

[A.non]

Anon is meta-trolling. Notice how Anon simply uses insults and doesn't back up his/her claims.

Like a typical lefty :)