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September 23, 2020 4:06 pm

Should Ruth Bader Ginsburg Have Resigned While Barack Obama Was President?

avatar by Alan Dershowitz


US Supreme Court Justice Ruth Bader Ginsburg participates in taking a new family photo with her fellow justices at the Supreme Court building in Washington, D.C., U.S., June 1, 2017. Photo: REUTERS/Jonathan Ernst/File Photo

In the midst of all the well-deserved praise being accorded the late Justice Ruth Bader Ginsburg, some Democrats are grumbling about her decision not to resign while Barack Obama was president and the Senate was controlled by Democrats. Had she done so, her replacement most certainly would have been a liberal woman who could have served on the high court for decades. Ginsburg was in her mid-70s at the time and had already suffered one bout of cancer. She was urged by friends to resign while President Obama could pick her successor. But she made a decision not to, because she believed she had many good years left to serve and cast votes in important cases. She ended up serving with distinction for nearly an additional decade.

In explaining to friends and colleagues why she made the decision to remain on the court, she reportedly said that she had never allowed men to tell her what to do and she was not about to allow Democratic politicians and supporters, mostly men, to demand her resignation, while she still had her mental and physical acuity. And indeed she worked hard to maintain that acuity, exercising – even allowing a book to be written about her exercise regime by her trainer.

So the following question is now being asked: Did she put her own selfish interests ahead of those of Democrats and liberals, whose future may well be affected by her decision not to resign earlier?

Let there be no mistake that Ruth Bader Ginsburg, who I knew for nearly half a century from her time as a professor and an ACLU lawyer, was a zealous liberal, and sometimes partisan. She made her negative views about President Trump public and clear, and she reportedly told her granddaughter that her dying wish was not to be replaced by a president who would obviously select someone whose views were the polar opposite of her own.

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She wanted to have it both ways: She wanted to continue serving on the Supreme Court for as long as possible; and she hoped to retire or die when a Democratic president could name her successor. But as an old Yiddish expression goes: “Man (and woman) plan; God laughs.” God obviously upset Ginsburg’s plans by taking her on Rosh Hashanah eve — a time reserved in Jewish tradition for the death of only the most righteous. But death trumped Ginsburg’s wishes, and now it is likely – though still not absolutely certain – that President Trump will get to name her successor and that her successor will be someone who will try hard to reverse at least some decisions that Ginsburg supported.

So was she right or wrong in her decision not to retire earlier? I think she was right, but for reasons different from those currently offered in her defense. Those who urged her to time her resignation so as to secure a liberal replacement, fail to take into account important institutional considerations. For the Supreme Court to retain its credibility as a non-partisan institution that serves as a check and balance against the elected branches of government, its members must not only be non-partisan, they must appear to be non-partisan. Justice must not only be done, but it must be seen to be done. Timing resignations to assure replacements in kind undercut the neutrality of the Supreme Court. Tragically, they reflect the current reality in which partisanship influences nomination and confirmation. For partisanship to also influence resignations and deaths would only further undercut the neutrality of the Supreme Court.

In response to my call for non-partisanship, many on both side of the aisle will argue that the other side started it. And they are both right. It was then Chairman of the Judiciary Committee, Joe Biden who urged President George H.W. Bush not to nominate a justice in the run-up to the election. But when he was Vice President, Biden supported President Obama’s nomination of Merrick Garland eight months before the 2016 election. Now he opposes President Trump’s nomination just weeks before the 2020 election. On the other side of the aisle, we have Lindsey Graham who in 2016 successfully opposed bringing the Garland nomination to the Senate, and now strongly supports bringing President Trump’s nomination to that same body. And then we have Justice Ginsburg herself, who in 2016 stated that the President has the authority to nominate a justice as long as he serves in office.

Unfortunately, partisan politics will continue to influence the Supreme Court in many ways. This will only weaken it as an institution over the long run.

Follow Alan Dershowitz on Twitter: @AlanDersh and Facebook: @AlanMDershowitz.

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