As of this writing only a few days have passed since the death of Associate Supreme Court Justice Ruth Bader Ginsburg after years of illness and at the ripe old age of 87. On the basis of mortality tables and personal medical history her death was hardly a surprise. Justice Ginsburg will be remembered as a serious jurist dedicated to her liberal inclinations.
Justice Ginsburg’s death on September 18, 2020, so soon before the November 3rd national election has generated much drama that should never have arisen. According to a surviving relative of the late Justice Ginsburg, her “most fervent wish” was not to be replaced until the “installation” of the next president. Whoever uttered those words (not necessarily Justice Ginsburg) meant by “next president” a Democrat, someone who is not Donald Trump. The implicit foundation for such a “fervent wish” is that Justice Ginsburg would have preferred to be replaced with a new Justice of like mind, someone who might be nominated by a Democratic President but not by a Republican. Justice Ginsburg was nominated in 1993 by President Bill Clinton. If Justice Ginsburg’s “most fervent wish” was to be replaced by a liberally inclined jurist, she had ample opportunity to reach that goal in the early to middle part of President Obama’s second term. All that was required was a bit of personal sacrifice for the greater good. To reach her goal Justice Ginsburg needed to retire when it was safe (for her SCOTUS seat) for her to do so.
I recall having read The Brethren a few decades ago. Associate Justice William Douglas had been a law school hero of mine. I was saddened to read how Justice Douglas struggled so much with ill health and how the man whose values and intellect I found so admirable lacked the self-awareness to appreciate the loss of his fitness for the Supreme Court. Though nominated all the way back in 1939 by Democratic President Franklin Roosevelt, Douglas ultimately took retirement in December of 1975 during the tenure of Republican President Gerald Ford. To his credit, President Ford nominated John Paul Stevens, who served until 2010 when he took retirement to be replaced by President Obama nominee Elena Kagan.
The CLB cannot call it a “rule” of the timing of optional retirement from the SCOTUS, but there is a “tendency” for retiring Justices to leave during the administration of a president of the same political party as the president who nominated them. Some retirements like that of Justice Douglas in December of 1975 are forced by ill health while most others are voluntary and optional to the end of giving the prospective retirees some choice in the matter of who will nominate their successor.
Looking at some recent or relatively recent retirements we see that of Justice Anthony Kennedy, nominated in 1988 by Republican Ronald Reagan and replaced in 2018 by Republican Donald Trump. Justice Sandra Day O’Connor was nominated in 1981 by Republican Ronald Reagan and replaced in 2006 by Republican George W. Bush (“Bush 43″). Justice William Brennan was nominated by Republican Dwight Eisenhower in 1957 and replaced in 1990 by Republican George H. Bush (“Bush 41″). Justice Byron “Whizzer” White was appointed in 1962 by Democrat John Kennedy and replaced in 1993 by Democrat Bill Clinton. Justice Lewis Powell was appointed in 1971 by Republican Richard Nixon and replaced in 1987 by Republican Ronald Reagan. Justice Potter Stewart was nominated by Republican Dwight Eisenhower in 1958 and replaced by Republican Ronald Reagan in 1981. Justices Harry Blackman, David Souter and John Paul Stevens ignored any trend or tradition of party loyalty. While these three were nominated by Republicans they retired during Democratic administrations. Justice Thurgood Marshall was nominated in 1967 by Democrat Lyndon Johnson but retired in 1991 to be replaced by the nominee of Republican George H. Bush (“Bush 41″). Overall, there seems to be a role for party loyalty in the timing of optional retirements.
Justice Ginsburg was too intelligent to miss the point that her choice to remain on the bench through the end of the Obama administration posed a risk of diminishing her cherished SCOTUS minority of liberal-leaners. It had to have been around 2014 that there was speculation of a Ginsburg retirement quashed by her retort that she still had much important work to do.
In theory the best time for a SCOTUS retirement is around the end of June, when the “October Term” which began on the first Monday of the preceding October comes to an end. Late June of 2016 (Barack Obama’s last full year in office) would have been the right time of year but still too late for a Ginsburg retirement given the Republican control of the Senate and the nearness in time of the 2016 election. Justice Ginsburg was too intelligent to have planned an end-of-term retirement in late June of 2016. If she wanted to maximize her time on the high bench without running the risk of replacement by a conservative, then an end-of-term retirement in late June of 2015 would have made the most sense.
If Justice Ginsburg had planned (despite the risk) for a retirement in late June of 2016 such plan would have been laid waste by the chaos triggered on February 13, 2016 by the death of conservative Associate Justice Antonin Scalia. You should recall that President Obama nominated Judge Merrick Garland, who never received a confirmation hearing or “up-or-down vote” in the Senate. Republican Senate Majority Leader Mitch McConnell declared that there should be no filling of a vacant SCOTUS seat in an election year.¹ If Justice Ginsburg had been considering retirement in late June of 2016, she knew months before that her replacement could be delayed until a Republican held the office of president.
The national political drama playing out now (and at least through election day) is fueled by hypocrisy of both the Republican and Democratic parties.² Merrick Garland had no entitlement (by his nomination) to a Supreme Court seat, but he did deserve an “up-or-down vote.” Had Senate Republicans in 2016 exercised their “advice and consent” powers by voting down the nominee there would have been partisanship but no foundation for today’s Republican hypocrisy. In 2016 the Republican policy was that there could be no confirmation vote in an election year. In 2020 the Republican policy is that there must be a confirmation vote within six weeks or so of the vacancy despite the looming election.
Despite their victimization in 2016, today’s Democratic voices are nearly as hypocritical as those of Republicans. The 2016 policy of Senate Democrats was that they should proceed without delay to a confirmation vote for the President’s nominee. The 2020 policy of Senate Democrats is that there must be a delay of confirmation of the President’s nominee until the next inauguration when (if Joe Biden wins) the nomination will expire. The Democratic hypocrisy is lessened a bit by the available excuse that they are simply looking to enforce the rule of 2016 as imposed by the GOP.
The only guarantee that the CLB can make is that the drama will continue, thanks in substantial part to Justice Ginsburg’s unwillingness to retire during the relatively safe era ending prior to October term 2015. I learned from The Brethren (which I regard as substantially accurate) how a seat on the high bench can be the opiate of the robed.
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¹ Senator McConnell has since revised his view.
² On February 19, 2016 I posted in Featured Articles “The Constitution and Supreme Court Vacancies” urging President Obama to seek actual Senate “advice” and urging the Senate to fairly consider any nominee. Neither piece of advice was followed.
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