Reuters landed the inside track on a question which has been quietly simmering on the back burner since the unpleasant events of last November. Given four more years in office, and given the ages and states of health of various members of the Supreme Court, would Barack Obama be making any more appointments to the bench? In an interview with Justice Ruth Bader Ginsburg, the answer to at least one of the seats under discussion would seem to be no.
At age 80, Justice Ruth Bader Ginsburg, leader of the Supreme Court’s liberal wing, says she is in excellent health, even lifting weights despite having cracked a pair of ribs again, and plans to stay several more years on the bench.
In a Reuters interview late on Tuesday, she vowed to resist any pressure to retire that might come from liberals who want to ensure that Democratic President Barack Obama can pick her successor before the November 2016 presidential election…
The justice, who survived two serious bouts with cancer, in 1999 and 2009, is keeping up a typically busy summer of travel, at home and abroad, beginning next week with a trip to Paris. Ginsburg said she was back to her usual weight-lifting routine and recently had good results from a bone density scan.
Later in the article, she repeats a previous goal of matching the 23 year tenure of Justice Louis Brandeis, which would take her to April of 2016. (And that close to a presidential election, it seems highly unlikely that the confirmation of a replacement could be managed the same year.) But she also went further, noting that Justice Stevens stayed until the age of 90, giving her a full decade to shoot for.
These sorts of ugly considerations have been made public before, and as Dr. James Joyner notes, they rather deflate the image of the non-political high court assured by lifetime appointments.
If I had my druthers, Justices would serve 20-year terms rather than indefinitely. A long, fixed term would both assure for an independent judiciary and solve several problems with lifetime appointments. It’s absurd to have 90-year-olds deciding the most important public policy issues and makes an already undemocratic institution even moreso to have people appointed by Gerald Ford still on the bench decades later; we had both until John Paul Stevens finally retired in 2010. Further, we’d end the incentive for presidents to appoint too-young Justices in order to extend their legacies and reduce the sort of pressures Ginsburg is now facing.
The twenty year term idea is intriguing, but absent a change to Article III, it would likely be problematic to implement. But the “undemocratic nature” of the institution, as Joyner calls it, does seem to come to light more and more as time goes on. Rather than completely independent agents, free from the constraints of election pressure, we wind up with the the most ideological candidates which presidents think they can get through. And, as James also notes, there is pressure to put in increasingly young ones so they can place the longest lasting stamp on the bench possible.
So in a way, Ginsburg is to be credited for shrugging off the concerned “liberal leaders” pushing her to step down while Obama is still in office. Of course, if she stepped down now, the end effect wouldn’t be much, at least in the short term. Obama would replace her with someone of like ideology and the balance of power wouldn’t really shift much, even though it would cement one block in place for much longer. The real fireworks would be if we lost one of the four conservative justices for any reason. The fight over that seat would be epic to say the least.