The “RBG Should Have Retired During the Obama Years” Take is Oversimplified

Every time Supreme Court Justice Ruth Bader Ginsberg gets a medical procedure (which is way too often for my liking), a small chorus of people rises up to say that because of her age and health concerns she should have retired during the Obama administration.

I have several problems with that argument.

First, it is demeaning to Justice Ginsburg — it is predicated on the idea that she brings no unique experience, skills, intellect, and insights to the court. Justice Ginsburg’s body of work, both before she was elevated to the Supreme Court and since, have made the nation a better place for all of us, but most notably for women. It could be easily argued that if we had lost her voice 8 years ago, there is no guarantee that numerous 5–4 cases might well have turned out differently. It could also be argued that over the past 8–10 years her reputation has grown and her visibility increased, serving as a powerful inspiration to all who have encountered roadblocks, again, particularly women. How many girls as we speak are growing up with RBG as their role model?

And, at least for me, a Ruth-less court (pun unavoidable) would be a lesser court. The argument for RBG retiring back then essentially says, “meh, she didn’t make a difference over the last 8 years. Anyone could have done it.”

When Justice Ginsburg went to Harvard Law School, she was one of only nine women out of a student body of 500. The Dean once famously asked the nine women how they justified taking a qualified man’s spot. Yet, she persisted. Her passion for the law was undimmed.

She was denied a Supreme Court clerkship because of her gender. Yet, she persisted.

You can’t tell me these experiences don’t give her a unique perspective on equality, fairness, and justice.

As a lawyer, a professor, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, and as an Associate Justice on the United States Supreme Court, Ruth Bader Ginsberg has been thoughtful, insightful, persuasive, fair, and effective. All of this experience has to matter for something. It can’t simply be swapped out for a younger model.

The “RBG should have retired” argument assumes that all justices appointed by Democratic presidents are equal, therefore when one gets too old, simply replace them.

Sure, this may be nibbling around the edges, but both Justice Ginsburg and Justice Breyer were appointed by the same president, Bill Clinton. Yet, they don’t agree 100% of the time — they agreed 81% of the time in the 2018 term, for instance. They are different in style as well — each informed by their life experience. Ginsburg asks pointed questions about the practical application of law — reflecting the litigator piece of her experience, whereas Breyer asks longer, theoretical questions, more reflective of his experience as a law professor.

I am not asserting one approach is better or more correct than the other. I am simply asserting that not all justices are alike, even when they are ideologically similar.

The other problem with the “RGB should have retired” argument is that it would have guaranteed Mitch McConnell’s involvement in her replacement. Yes, I am aware that Democrats controlled the Senate for six years under President Obama, and that he nominated two justices who were able to get confirmed. It’s interesting to point out that both of those were in his first term, and both were when Obama enjoyed the most Democratic Senate of his presidency.

In the first year of Obama’s second term, partisanship was at a fever pitch — and arguably the most contentious issue was the confirmation, or lack thereof, of judicial appointments. In fact, it was in 2013 that Democrats used the “nuclear option” — enabling the Senate to confirm three judges to the U.S. Court of Appeals for the District of Columbia Circuit (yes, the very same circuit on which RBG served) by a simple majority vote, rather than a 60-vote supermajority — which had been the practice for decades. At that point, Senate Republicans vowed they would get revenge. It is difficult to know what that revenge might have looked like had there been a Supreme Court vacancy during that time. Also, the move to “go nuclear” was unprecedented, and at that time hadn’t been applied to the Supreme Court. There is/was no guarantee Democrats would have exercised the option.

Regardless, any Supreme Court nomination would have had to be truly centrist — perhaps literally at the dead center — as the Democrats’ margin of majority at that time was made up of centrist Democrats in tough states up for re-election: Senators Begich, Pryor, Udall, Landrieu, Hagan, and Warner. Those senators were all in the fights of their political lives, making the need for a centrist nomination critical had one opened up. (Another interesting note — the vote to go nuclear on lower court nominations was opposed by three Democratic senators, only one of whom was in that endangered re-election class.) As it was, out of that group, only Senator Mark Warner was re-elected, and even that was by a mere .08%.

For the last half of Obama’s second term, Mitch McConnell was the Majority Leader, as a result of Democrats getting drubbed in the 2014 midterm election, losing 9 Senate seats and 13 house seats.

It is difficult to say with any certainty whether Mitch McConnell would have held up a Supreme Court nomination for 2 years — though he didn’t even break a sweat holding one vacant for 14 months. One thing we can say with certainty, though, is that a nominee as aligned or more aligned with progressives than Ruth Bader Ginsberg was not going to happen. Merrick Garland may well be many things, but being more progressive and more committed to equality than RBG are not among them. Despite his rigorous centrism, even this white, male, impeccably credentialed, experienced judge was not good enough to get Mitch to even grant him a hearing.

Finally, to paraphrase an old adage, better the justice that you know, than the justice that you don’t. Supreme Court nominees are not always predictable — just ask George H.W. Bush about Justice David Souter. It seems like it would have been a big roll of the dice to cut RBG’s tenure on the highest court by one-third, to replace her with a centrist, lesser-known quantity.

The bottom line is this — a Supreme Court appointment is a lifetime appointment. The only earthly arbiter of when the appointment ends is the justice herself. We progressives have trusted Ruth Bader Ginsberg on decision after decision. So far, allowing her the power to decide has turned out pretty well, so let’s let her make this decision too.

I am not saying the “RBG should have retired” argument is wrong. I am saying it is oversimplified and lacks nuance and context.

That said, for me — and I suspect for many progressives — the Supreme Court will be a lesser body when Ruth Bader Ginsberg is no longer on the bench.

Period.

Regardless of who might replace her.