As the U.S. Supreme Court comes closer to the end of its term in late June, some Democratic elected officials and progressive law professors are calling on Justice Ruth Bader Ginsburg to announce her retirement when the term concludes. Their argument is that Ginsburg, the Court’s oldest member at 81 and the leader of the Court’s liberal wing, should retire in time to allow President Obama to nominate her successor while the Democrats still hold a majority in the Senate.
I am not persuaded by this argument. First of all, its advocates’ claims about the political calendar are not accurate. The recent changes to the Senate’s filibuster rule, allowing nominations to be taken up by a simple majority vote, do not apply to Supreme Court nominations.
A super-majority of 60 senators is still needed to shut off debate on a Supreme Court nomination. If Ginsburg were to retire in June and most Republican senators wanted to prevent the Senate from considering Obama’s nomination of her replacement later this year, they would have enough votes to do so, even before potentially winning a Senate majority in the November elections.
More importantly, the argument that Ginsburg should retire soon demeans Justice Ginsburg herself. Ginsburg is a fully engaged member of the Supreme Court. She participates actively in questioning at oral argument and writes opinions that are both well-reasoned and well-crafted.
Ginsburg, a cancer survivor, takes good care of her health. A recent profile in “The New Yorker” reported that she exercises regularly and works with a personal trainer several times a week. There is no evidence that she is too old to continue serving effectively on the Court.
Also, Ginsburg is only three years older than Justices Antonin Scalia and Anthony Kennedy. No one seems to be arguing that these male justices should be considering retirement soon.
Ginsburg gives every indication that she enjoys her work and wants to continue serving on the Supreme Court. Her dissenting opinions show that she is concerned about the direction in which the Court’s conservative majority is taking the law, on a range of issues including campaign finance regulation, the role of religion in public life, the powers of the federal government vis-a-vis the states, and affirmative action.
As the senior member of the Court’s liberal wing, Ginsburg gets to decide who writes the opinion when the liberal justices dissent from a ruling by the Court’s conservative bloc led by Chief Justice John Roberts. She can either write the dissent herself, or assign it to the colleague whom she believes will make the strongest opposing argument.
Ruth Bader Ginsburg has been a legal pioneer throughout her career. She was one of the first women to graduate from Harvard Law School, and one of the first women to become a tenured professor of law, at Columbia Law School. During the 1970s, she wrote the first textbook in the field of the legal rights of women.
As an advocate, she brought some of the landmark early cases on women’s rights to the Supreme Court. After Ginsburg served 13 years on the United States Court of Appeals, President Clinton nominated her for the Supreme Court in 1993.
Justice Ginsburg has well-served the legal profession, the law, and the Constitution in her 34 years on the federal bench. There is no reason why she should leave the Supreme Court before she feels ready to do so.
Eric L. Davis is professor emeritus of political science at Middlebury College.