Wait? Now Ginsburg AND Breyer have to retire!?

November 30th, 2013

I’ve blogged ad nauseum about calls for Justice Ginsburg to retire. It seems whenever things are looking down for Democrats, we hear the same call. Now that the Senate very well may go Republican in 2014, the calls repeat. But this time, they want Breyer to step down too!

From Jonathan Bernstein at The Plum Line (a blog with a “liberal perspective” at the Washington Post), we get the call for both to step down. He first references a recent article by Charlie Savage, which I blogged about the other day.:

The new Senate policy could also shape the career decisions of sitting judges. While the change did not affect the rules for Supreme Court nominations, it set a precedent that could be used to shut down any filibuster for such a nominee as well. Several observers suggested that the prospect might influence decisions by Justices Ruth Bader Ginsburg, 80, and Stephen G. Breyer, 75, about whether to retire in 2014. Still, neither has publicly indicated any desire to time an exit strategically.

I wonder who these observers are. They aren’t speaking with any personal knowledge. They are merely speculating on how recent events may impact the decisions by RBG and SGB to retire.  I can do that. I observe all the time. I observe that RBG won’t give a damn. Breyer, not so sure.

Anyway, Bernstein writes:

Apparently there’s some question about the strategic imperative facing liberal Supreme Court Justices Stephen Breyer an Ruth Bader Ginsburg now that Democratic senators have fought back against Republican obstruction on nominations. Let me clear this up. There’s absolutely no question about it; if they want to secure the principles they have fought for during their careers, the best thing both of these senior liberal justices can do is to retire right now.

For Ginsburg and Breyer to risk their judicial legacy on predictions of the outcomes of these elections is nuts. It’s easy to predict what kind of judges a Republican president would select, but political scientists would tell the justices that there’s no way of predicting any presidential election two or more years in advance.

Yes, both Ginsburg and Breyer could have a dozen, or for all I know two dozen, productive years ahead of them. Yes, they both appear to still be at the top of their games right now. Yes, they would be giving up a lot personally if they stepped down.

But the strategic imperative is just as clear as it is harsh.  If they care about the principles they have worked for, it’s time to step down.

Poor Justice Breyer. He gets injured all the time. Maybe he should take one for the team, so RBG can continue being glamorous?

Come to think of it, what will Justice Breyer’s “legacy” be about? Citing legislative history when the rest of the Court shies away from it? Fighting to prop up the sentencing guidelines through the perpetual dissent when the Court has moved on? Implementing balancing tests that no one can apply? Asking questions that last an entire page in the transcript (the Breyer pages)? What is Breyer’s most significant opinion? His Morrison dissent? Heller dissent? Apprendi dissent?