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Monday, March 24, 2014

Of Course Justice Ginsburg is Replaceable

I didn't think I would write again on this topic; I thought it was pretty played out. But it appears, somewhat inexplicably, that Erwin Chemerinsky has put it back in the news with a recent op-ed. Garrett Epps and Dahlia Lithwick have filed dissents. 

I chose the title for this post, so I'm responsible for it. I don't assume Lithwick chose her headline--"Ruth Bader Ginsburg is Irreplaceable"--so I don't hold her responsible for it. Still, my title is certainly a response to that one. Granted that we are all each one of us special, and that Ginsburg is extraordinarily smart, a leading figure, of great historical importance, and so on. And Lithwick, citing Epps, has a point when she argues that Ginsburg's seniority itself, with the opinion-writing assignment power that goes with it, is a factor in itself apart from her own gifts. Nevertheless, no one is irreplaceable. What is true is that every Justice and every Court necessarily involves unique personal and relational factors. But every Justice can be replaced and, inevitably, will be replaced. The only question is one of timing, and there is nothing unreasonable or insulting about suggesting that, if you care about things like liberal outcomes or care more about the outcomes and their effects on average Americans and less about honoring particular justices as individuals, the balance of factors favors retirement now rather than later. I'm not sure I take that view, but then I'm not a crusader for liberal outcomes on the Court or much given to talking about the effect of the Court's decision on women, minorities, and Americans in general. The people who are inclined to talk in those terms are the ones insisting she should not retire, and that seems irrational to me. Certainly the fact that she more than earned her seat, or that she would be unhappy without it, are hardly important factors for the rest of us to consider. If there is one area where elite Americans of all stripes come together, it is in their membership in the cult of personality. ("I am fascinated by this woman warrior with the body of a sparrow and the heart of a lion," Epps writes. Rich sentence, but a little too Gladiator for my simple democratic tastes.) On this issue I agree with much of what Isaac Chotiner has to say in this New Republic piece. (I must add that the New Republic may actually be outdoing Slate as the worst-designed web site in its sector of the Internet. I feel almost obliged to apologize for linking to it.) 

I should add that both Epps and Lithwick make some interesting and valid points. In particular, I find it difficult to figure out why Chemerinsky bothered writing at all. If insisting ten times that someone should retire doesn't work, it's pretty unlikely that things will change the eleventh time. Epps is not wrong to wonder whether the drumbeat isn't "bad manners and bad psychology," although the latter is much more important than the former. (Other points are much more debatable. I won't bother to list them all. But when Lithwick writes that "many" believe John Paul Stevens retired from the bench "too early"--at 90!--I think she is being generous in her use of the word "many.") 

I thought the most interesting, and telling, statement was in this passage from Lithwick: 

It strikes me as interesting that regular court-watchers tend to be affronted by suggestions that it’s time for Ginsburg to go, just as political scientists are astonished that it isn’t. Maybe Linda Greenhouse, Epps, Bazelon, and others are considered by the Ginsburg’s-got-to-go crowd as simply captive to the same “justices aren’t political” brainwashing as Ginsburg, but maybe they just see Ginsburg through a different lens.

Perhaps that is precisely where the difference lies, between the political scientists and attitudinalists and the more personality-oriented and deferential "court-watchers." I think reason favors the political scientists on this one, and that much is implied by that word "affronted," which suggests that the whole issue is personal rather than strategic and, to be blunt, focuses more on the legal celebrities than on the people whose lives their votes affect. Lithwick writes of "the fears of all of us who have watched the court slowly erode abortion, employee, environmental, and voting rights in the past decade." I happen to share those views, more or less, on a political level, although I consider my feelings on the matter mostly irrelevant to my work as a legal academic, at least when I am doing my job right. But if those are her fears, then it hardly seems flawed to me, as it apparently does to Lithwick, to say that "counting to four, or five, is more important than the justice herself." To the contrary, it obviously is. The attitudinalists may not take everything into account, but on balance they're right.    


Posted by Paul Horwitz on March 24, 2014 at 12:40 PM in Paul Horwitz | Permalink


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The Constitution provides for life tenure for federal judges on good behavior. Why should Justice Ginsburg be hounded off the bench if she has not done anything that warrants removal? The framers knew that people got old, and understood all the problems that go along with advancing age. Life expectancy was shorter then, but that was largely because so many children died. If people made it into adulthood, especially the kind of people who became judges-- they had a reasonable shot at good long life.

Posted by: AGR | Mar 24, 2014 2:33:31 PM

I appreciate the comment. To be clear, I don't think that Justice Ginsburg (or anyone else) should be hounded off the bench. As I said, I doubt that direct hounding is an especially effective measure in any event, and I would sympathize with those who say that at least after a given number of times it does begin to be more rude then sensible. I do think, however, that whatever the merits of a particular sitting justice, given some set of preferences for outcomes, retirement makes more sense toward achieving those and then staying on the bench, and that I do not think it is rude in itself to say so. More generally, I find something odd and perhaps even a little distasteful about focusing on the biography or desserts of or love for a particular person serving in that role rather than on the outcomes themselves, which should at least be more important for those who profess deep concern for outcomes and their effects on ordinary Americans, a category that embraces all the writers I mentioned above. I hope I am not being too indelicate when I say that I think this reveals something about the deep preferences of American elites, and perhaps the way in which many people do not fully grow out of the culture of clerkship.. I should perhaps add that, whatever the merits or relevance of the views of the Founders, I do not think urging someone to retire is inconsistent with lifetime tenure, leaving aside whether lifetime tenure is a good idea or not. I am not, however, invested in her leaving the bench; I simply think the argument for it makes sense given a preference for outcomes over personalities.

Posted by: Paul Horwitz | Mar 24, 2014 2:58:42 PM

"Some set preferences for outcomes"-- you mean the Democrats don't think they can win in the immediate electoral contests to come -- the congressional elections and the next presidential election-- so Ginsburg should go off the bench and allow Obama to TRY to appoint someone as liberal as she who will help the Democrats enact(preserve what is left of)their agenda through the rulings of the Court.

Posted by: AGR | Mar 24, 2014 3:23:28 PM

AGR: hmmm.....because Republicans never legislate from the bench, eh?

Posted by: Anon | Mar 24, 2014 3:41:47 PM

I think that is close to the governing assumption or assumptions that appear to be driving this debate. If I were describing it, I would probably take her with it a little bit. I assume the general view is that the Democrats will lose seats in the midterms, and in any event that it would be harder to get a nomination through in the year or so before a presidential election, although I'm not sure whether that assumption is accurate. They might also not want to have a nomination that close to the election not because it would fail, but because it would become a major plank and fundraising opportunity for their opponents in the election. I doubt that anyone thinks that Obama would nominate someone as liberal as Ginsberg, however liberal that is. I would also add that the issues and beliefs that form nominees change generationally, so that one generation's liberals or conservatives do not have exactly the same set of views as those of the prior generation. Even assuming, quite plausibly, that the nominee would be less liberal than Ginsberg, I further assume that the view is that that person would still be liberal enough to satisfy on 5 to 4 votes, and more liberal than anyone who would replace her in the event of a Republican president or more Republican Senate. Again without urging a particular course of action, I think these are pretty rational assumptions. Whether the focus should be as much on Ginsburg as it has been, as opposed to both Ginsberg and Breyer, is a separate question, although their politics or predicted length of tenure might differ. Either way, as I wrote earlier, pressing them publicly to step down for the good of the order seems like an unlikely strategy to succeed.

Posted by: Paul Horwitz | Mar 24, 2014 3:47:45 PM

@ Anon-- of course they legislate from the bench. But they do something else, too. They have, for the past few decades, found a formula that allows them to win election both in the Executive and Legislative branches which has, in turn, allowed them to appoint judges who can legislate from the bench.

Posted by: AGR | Mar 24, 2014 4:00:13 PM

Thank you for continuing to bash the Slate website redesign. It is truly awful.

Posted by: carissa | Mar 24, 2014 4:01:24 PM

Carissa, TNR's site makes Slate look perfect by comparison. But then it strikes me that the whole magazine is in terrible shape these days.

Posted by: Paul Horwitz | Mar 24, 2014 4:10:32 PM

Garrett Epps is about where I am on this matter.

W/o looking, could Lithwick mean Souter? Makes a lot more sense, though I'm fine with Sotomayor. And, Kagan, for that matter.

I'm fine with arguing it is time to retire, though some reasons might not be good, but the pragmatic usefulness of it here is as noted dubious. And, if a Republican does win in '16, worrying about the "fourth vote" to me is a tad short-sighted. Ginsburg's long road view, so to speak, seems worthwhile. She has showed her chops there.

And, yes, she's replaceable. Few aren't. It might be sacrilegious to say and forgive me if it is, but even Jesus doesn't to me seem one of the kind, at least given there were ready alternatives around. We might not as familiar with them at this point, but there were. Some even were thought to commit miracles and the like.

Posted by: Joe | Mar 24, 2014 5:31:19 PM

This strikes me as exactly right.

Posted by: Tamara Piety | Mar 24, 2014 6:45:20 PM

The graves of the world are full of indispensable men (and women).

Posted by: ML | Mar 27, 2014 4:52:38 PM

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