Chris Geider writes at the Daily Beast:
A little more than a year ago, Harvard Law School Prof. Randall Kennedy sounded the alarm.
“Justices Ruth Bader Ginsburg and Stephen Breyer should soon retire,” Kennedy wrote in the pages of The New Republic. “That would be the responsible thing for them to do.”
If they didn’t, Kennedy warned, and “if Obama loses, they will have contributed to a disaster.”
As the presidential race heats up, and the Supreme Court justices settle into their chambers to write their last and most consequential rulings of the 2011-12 term—from health care to immigration—Kennedy’s question once again seems relevant, even revelatory: most court watchers agree it’s now too late for Ginsburg—or Breyer, or any other justice—to give President Obama a third nomination to the high court before the election.
Kennedy’s hypothetical has taken on renewed significance, however, since Mitt Romney is currently polling close to or above President Obama in several key battleground states. If he were to unseat Obama this fall, and Ginsburg—a two-time cancer survivor who turns 80 next March—doesn’t feel she can continue through Romney’s first (or possibly second) term, should liberals fault her for potentially tilting the balance of the court for decades to come? . . .
This isn’t a new concern: In the mid-1970s, Justice William O. Douglas, who’d been appointed by FDR in 1939, faced his replacement being named by a Republican president.
As Bob Woodward and Scott Armstrong recounted in The Brethren, Douglas told a friend he would not step down despite suffering from debilitating illness. “Even if I’m half-dead, maybe it will make a difference about someone getting an education,” Douglas said. “There will be no one on the Court who cares for blacks, Chicanos, defendants, and the environment.” . . .
Eugene Volokh, a law professor at UCLA who characterizes himself as a libertarian-leaning conservative, defends Ginsburg choosing the time for her own retirement.
“Justice Ginsburg has to make a decision that makes sense for herself based on her judgment about what she wants to do and how long she wants to serve her country and how much it matters to her that her replacement be named by a President Obama rather than a President Romney, and how she feels. She has a better sense about her health than you or I do,” he said.
Perhaps reflecting the generally high level of respect accorded the justices, Kennedy did not suggest that Justice Thurgood Marshall, for whom he once clerked, had damaged the court by failing to retire under a Democratic president. The first President Bush filled Marshall’s seat with Clarence Thomas, by many measures the most conservative justice on the court.