A leading progressive legal scholar is calling on Justice Rush Bader Ginsburg to retire, elevating the pressure on the leader of the Supreme Court’s liberal wing to avoid the prospect of a Republican president picking her replacement.
Erwin Chemerinsky, the Dean of UC Irvine School of Law and a prominent legal mind, made his thoughts known in a Los Angeles Times op-ed on Saturday, when Ginsburg turned 81. He called on the jurist, whom he praised, to step down after the current term ends in June because “only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values.”
A great deal turns on who picks Ginsburg’s successor. There are, for example, four likely votes to overturn Roe vs. Wade on the current court: Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. If a Republican president selects Ginsburg’s replacement, that justice easily could be the fifth vote needed to allow the government to prohibit all abortions. On many cases — including ones involving environmental law, healthcare, gay marriage, the death penalty and the rights of those in Guantanamo — the four liberal justices have joined with Justice Anthony M. Kennedy for a progressive result.
But if a conservative had been occupying Ginsburg’s seat when the court heard those cases, the rulings might well have been very different, and if a conservative takes her seat when she leaves, they might not survive.
He said Ginsburg ought to quit sooner rather than later, cautioning that Republicans could win the Senate in 2014 and block a progressive nominee or otherwise stall any replacement until after the 2016 election.
Ginsburg, who by all accounts appears to be in good health, repeatedly said last year she hasn’t slowed down on the job and has no intention of stepping down. She has even predicted a Democratic victory in the 2016 presidential election.
Chemerinsky isn’t the first prominent liberal to call on the justice, who has served since 1993, to relinquish her coveted seat. Political scientist and progressive blogger Jonathan Bernstein has called on both Ginsburg and fellow Clinton-appointed Justice Steven Breyer, 75, to step down under President Barack Obama.
Chemerinsky agreed that Breyer, “who will turn 76 this summer, should also carefully consider the possibility of stepping down this year.”