Four Reasons to End Calls for Justice Ginsburg’s Retirement

By Steve Klepper (Twitter: @MDAppeal)

[Updated, 6:21 p.m., March 17, 2014. See comment below for details.]

One gift that Justice Ruth Bader Ginsburg received for her 81st birthday was yet another editorial – this time by Erwin Chemerinsky– calling for her retirement. As soon as chatter dies down, we can expect a new round of editorials criticizing Justice Thomas’ silence at oral argument, followed by another round of calls for Justice Ginsburg to retire. (Maybe I should have saved my “Time Is a Flat Circle” reference for this post.)

A few quick thoughts:

1. I hope we can all agree that Justice Ginsburg has worked far too hard to deserve this stream of criticism from the very people who admire her accomplishments.
2. If your goal is to convince Justice Ginsburg to retire, stop and think whether another editorial will help your cause. The likely effect, if any, of such editorials is to stiffen Justice Ginsburg’s resolve to stay on the Court. (As I’ve written before, if one wants to convince Justices to retire younger, the more effective path is to make “Retired Justice” a more attractive job by permitting Retired Justices to sit in place of recused Justices.)
3. Even if Republicans retake the U.S. Senate in November 2014, I doubt there will be a major impact on a Supreme Court nomination. Let’s say that Justice Ginsburg announces in January 2016 that she’s stepping down on June 30, 2016 – thus surpassing Justice Brandeis’ time on the Court. At least two leading potential nominees would likely sail through the Senate, even in a presidential election year: D.C. Circuit Judges Sri Srinivasan and Patricia Millett. Both were thoroughly vetted on the assumption they would be in the running for future Supreme Court vacancies. (Neither appears likely to rehash Democrats’ 1968 Abe Fortas disaster.) The Senate confirmed Judge Srinivasan 97–0. Although the vote on Judge Millett was 56–38, Republicans repeatedly praised her, instead contending that the D.C. Circuit didn’t need more judges.
4. Here is the concern that prompted me to write: there remains a vacancy crisis on the lower federal courts, and now would be an unfortunate time for any Justice to announce his or her retirement. Approximately 10% (86/856) of Circuit Judgeships and District Judgeships are vacant, with 52 nominations pending for existing and future vacancies. Most of those nominees are noncontroversial, and the federal judiciary needs their help. A retirement now could impede efforts to fill those vacancies. For example, when Justice Souter announced his retirement on May 1, 2009, the effort to identify and confirm his replacement derailed early efforts to nominate judges for lower federal courts. Only in September 2009, following Justice Sotomayor’s confirmation, did the Senate first confirm any lower court nominees. A change in control of the Senate would have a far greater practical effect on lower court nominees, outside the bright public spotlight of a Supreme Court nomination.