The New York Times leads the campaign for Justice Ginsberg to step down while Obama is still president:
The “best way for her to advance all the things she has spent her life working for is to ensure that a Democratic president picks her successor,” wrote Erwin Chemerinsky, dean of the law school at the University of California, Irvine. Randall Kennedy, a Harvard law professor and a former clerk to Justice Marshall, has argued that both she and Justice Breyer should retire. Former Justice Stevens, for his part, has said, “It’s an appropriate thing to think about your successor.” (Indeed, Chief Justice Warren deliberately resigned before the 1968 election, in an effort to prevent Nixon from naming his successor.)
On the other side of the issue, Dahlia Lithwick of Slate has written, “I have seen not a lick of evidence that Ginsburg is failing,” adding that the justice’s successor is not likely to be as liberal as she is, given today’s political climate.
This much seems clear: The decision is Justice Ginsburg’s, and people close to the court do not expect her to retire this year. No doubt, being a Supreme Court justice is more enjoyable and consequential than being a retired justice. Sandra Day O’Connor, who retired in 2006, has since regretted stepping down as early as she did.
At the same time, there is no denying that any justice who stays on the court into old age is taking a chance. Justice Ginsburg will do damage to the causes about which she cares most if she follows the path of previous liberal justices who allowed a Republican to replace them. Similarly, Justice Scalia or Justice Kennedy will hurt conservatism if either passes up a chance to resign under a Republican president in coming years — and doesn’t get another such chance.
Just think about what liberals would give to have had a Democratic president replace Justice Marshall. And think about how many major cases — on voting rights, campaign donations, the death penalty and other issues — might have turned out differently.
The most interesting aspect of this editorial is that it tends to indicate the NYT’s belief that the next president will not be Hillary Clinton or any other Democrat. Personally, I’d love to see Obama appoint one more Supreme Court justice just to see how badly he’d screw it up. He’d likely appoint a corrupt black lawyer from Chicago, or, more likely, one of Goldman Sachs’s corporate attorneys, because Valerie Jarret wouldn’t accept the pay cut.