Breyer should learn from Ginsburg’s mistake — and retire now

Ginsburg was a legal titan with a mind that remained keen until the end of her life. Nevertheless, in 2014, when she turned 81, I joined others who were imploring her to retire from the bench. As I wrote then, she had the opportunity to “ensure that a Democratic president will be able to choose a successor who shares her views and values,” lest the influence of her voice and her vote on issues ranging from “environmental law, healthcare, gay marriage, the death penalty and the rights of those in Guantanamo” be diminished “if a conservative takes her seat.” I worried that Republicans would take control of the Senate that year (they did) and that it was impossible at that time to predict what would happen in the 2016 presidential election (in hindsight, an understatement). Before the 2014 midterm elections, the Senate had a Democratic majority, and had Ginsburg retired at that time, whomever President Barack Obama — who had already tripled the number of women then serving on the Supreme Court — nominated to succeed her almost certainly would have been confirmed. Obama never got the chance. Ginsburg made clear that she was in good health, believed no one could be as effective as she could in advancing her constitutional vision and had no intention to step down. Though none was intended, she and many others took offense at the suggestion. Indeed, as a scholar who still considers her a role model, calling on Ginsburg to retire gave me no satisfaction. But she was gambling that she would be able to leave the bench with a Democratic president in office. Instead, President Donald Trump picked her successor, selecting someone from the opposite end of the ideological spectrum, Justice Amy Coney Barrett.