Supreme Court Justice Ruth Bader Ginsburg is reportedly doing fine after a procedure Wednesday to implant a stent in her right coronary artery. But this health scare is sure to revive the debate about whether the 81-year-old leader of the court's liberal wing should retire to ensure that her successor will be appointed by President Obama.
In an op-ed piece in March in the Los Angeles Times, UC Irvine law school dean Erwin Chemerinsky got right to the point: "Justice Ruth Bader Ginsburg should retire from the Supreme Court after the completion of the current term in June." Only by resigning, Chemerinsky wrote, could Ginsburg "ensure that a Democratic president will be able to choose a successor who shares her views and values."
Ginsburg didn't oblige. Now the debate is likely to take on a new and retrospective quality given the impending Republican control of the Senate. If Ginsburg had stepped down last year, the confirmation of her successor would have been shepherded by Senate Judiciary Committee Chairman Pat Leahy (D-Vt.). If she were to retire now, the gavel would be wielded by Sen. Charles Grassley (R-Iowa).
But the change of party control in the Senate might not make all that much difference. If the Democrats had retained control of the Senate in this month's midterms, Republicans still would have been able to filibuster a Supreme Court nominee they considered too liberal. That's because when they triggered the nuclear option allowing a simple-majority vote for most confirmations, Democrats preserved a 60-vote requirement for action on Supreme Court appointments. (Of course, so long as Democrats controlled the Senate they could "go nuclear" on Supreme Court nominations too.)
Anyone Obama put forward to replace Ginsburg probably would be less predictably progressive than "Notorious RBG," the nom de rap some admirers have conferred on Ginsburg. But even a "pastel" Obama nominee would be preferable from a liberal point of view to someone appointed by a President Ted Cruz or even a President Jeb Bush. So expect more suggestions that Ginsburg step down while Obama can still replace her.
This sort of gamesmanship wouldn't be possible, of course, if justices were unable to time their retirements based on political considerations. In a post last year, I noted that there were two ways to do away with this phenomenon.
First, the Constitution could be amended to allow for mandatory retirement of justices, who, like other federal judges, serve for life. Alternatively, Congress could enact a statute requiring Supreme Court justices to surrender their places on that court -- but not their status as federal judges -- on reaching a certain age. (Justices who voluntarily retire remain federal judges and sometimes hear cases on lower courts.)
A third option would be fixed terms for service on the court regardless of the appointee's age. A 20-year term would allow a justice ample time to make a significant contribution to the court's jurisprudence. Such a rule would have the additional advantage of making it more likely that presidents would consider distinguished lawyers in their 50s and 60s for court vacancies instead of seeking out relative youngsters.
Ginsburg was appointed to the court by President Clinton in 1993 and she was 60 when she was sworn in. If she had been appointed to a 20-year term, she'd be retired now and her health would be of concern primarily to her, her family and her doctors.