Harvard law professor Randall Kennedy has a curious piece up The New Republic urging elderly Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg to get the hell out of the way and let President Obama appoint some young liberals to the bench before it’s too late. Here’s the crux of his case:
If Ginsburg or Breyer (or both) announced retirement at the end of this Supreme Court term (pending the confirmation of successors), they could virtually guarantee that President Obama would get to select their replacements. Senate Republicans have shown themselves to be willing to stymie the process of judicial confirmation and leave vacancies open for long periods of time. The Supreme Court, however, occupies a different status than federal trial and appellate courts. Even the most recalcitrant Republican senators seem to acknowledge that Supreme Court vacancies should be filled without undue delay. That is why Ginsburg and Breyer need to act soon. If they wait much beyond the end of this Supreme Court term, the Republicans will delay confirmation, praying for an upset in the presidential election.
If Ginsburg and Breyer abjure retirement and Obama wins, the justices’ subsequent departures will be relatively harmless. On the other hand, if Obama loses, they will have contributed to a disaster.
Given Breyer’s recent publishing spree and Ginsburg’s repeated assertions that her health is just fine, thank you very much, I don't really see either of them voluntarily relinquishing such a powerful job, especially at the urging of The New Republic. But I guess you never know.