Why Can't We Kick These Old Fogies Off the Bench?

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.

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  • ||

    60 more years! 60 more years!

  • robc||

    praying for an upset in the presidential election.

    Methinks The New Republic is a bit delusional.

  • ||

    Unless Obama can dig up some more fat lesbians from Harvard, he's outta nominees given he's cleaned that dump out of'em.

  • Fat Lesbians from Harvard™||

    We're here, we're...well, you know.

  • Auntie Semitic||

    There are still plenty of Joos.

  • Stretchy||

    Yet more evidence that the Supreme Court is little more than a partisan legislative body.

  • ||

    Go TEAM BLUE!!

  • Almanian||



  • JoJo Zeke||

    they will have contributed to a disaster

    "... and, really: that's Congress' job, after all."

  • Justice Sonia Sotomayor||

    All our problems would be solved if we just replaced the entire court with wise latinas.

  • Jim||

    You know, if you replaced "wise" with "hot", I could get on board here.

  • ||

    There's no accounting for differences in tastes. IMO, "hot latina" is so much jumbo shrimp.

  • ||

    For me, female ethnicities fall into the same category as beer* and music genres: there may be certain ones I prefer more than others, but I'm pretty sure I can find a few in any category that I'll enjoy.

    *Exception that proves the rule: American wheat ales.

  • Blue Moon||

    Why do you hate me!?!

  • ||

    I'm referring to the style, not literally all wheat ales brewed in the U.S. Blue Moon is technically a Belgian-style Witbier.

  • SIV||

    No wonder it tastes like piss!

  • zedzded||

    Oberon is not bad

  • Justice Sonia Sotomayor||

    Are you implying that I'm not hot?


  • Santa||

    Santa has noticed you sweat more than the average person.

  • ||

    Justice SotoMayor, although I agree with the 3:56 post of ClubMed, you are

    MUY FEO!

  • ||

    Um, Friederich is my favorite Hayek, but just barely...

  • Almanian||

    Well, Selma's got my vote, so she shouldn't feel left out of The Most Favoritist Hayek contest.

  • Devil Inchoate||

    I prefer Salma.

  • Whatever||

  • ||

    Eva Longoria is an immigration expert, so she's probably "wise" enough.

  • JoJo Zeke||

    Team Blue's idealized conceptualization of a thoroughly Obama-ized United States Supreme Court.

  • ||

    On the other hand, if Obama loses

    I think this probably qualifies as racist hate speech at Harvard.

  • ||

    Why did Kennedy target only Jewish justices for elimination from the Court? Aren't Scalia and Thomas also getting a little long in the tooth?

    Prof. Kennedy's Final Solution for the Judicial Problem should aim to be more subtle in its anti-Semitism.

  • Auntie Semitic||

    Works for me!

  • OO||

    all moot since obama will be re-elected...once he opens the strategic petrol reserve after labor day

  • ||

    Followed by investigation #6,772 into why the price of oil sometimes fluctuates upward, no doubt. Damn you, speculators!

  • ||

    Muqtada al Sadr will be to Uncle Sugar what Khomeini was to Jimmy Carter...you watch and see.

  • ||

    How does Kennedy know how old Breyer is? Has he seen his long-form birth certificate? Well, has he?

  • ||

    Ginsburg’s repeated assertions that her health is just fine

    So people have been asking her about her health lately?

    In a sort of "so .... when are you going to kick the bucket so we can replace you" kind of way?

  • Tim||

    "I'm not quite dead yet. I think I'll go for a walk."


  • Hugh Akston||

    New Republic writers are lurking in the bushes outside the Supreme Court building to try and scare Ginsberg and Breyer into a heart attack.

  • Barely Suppressed Rage||

    Maybe they'll interview them and constantly make lots of sudden movements and loud noises.

  • Really?||

    Well, as unseemly as that may be, she does have pancreatic cancer which really means it is just a matter of a short amount of time.

  • cynical||

    Sort of a "please ensure that you die while you can be replaced by a Democrat" kind of way.

  • Tim||

    Dems urge "end of career counseling" for old farts.

  • Cyto||

    Hey Barry, appoint me! I pledge to be a consistent swing vote!

    By that I mean that I'll rule almost everything unconstitutional, so whichever way the statists swing around, I'll be in the "that's unconstitutional" majority.

  • Brett L||

    Now that you mention it, why is the State the only thing liberals don't have to kill in order to save?

  • Fist of Etiquette||

    Everything except the State is a potential burden.

  • Almanian||

    Cyto, I like the cut of your jib.

    How quick can we get you through Hahvahd and into a preperatory circuit-court job?

  • peachy||

    Can we do one of those old-timey church things, in which a formerly secular candidate for the episcopate spent one day at each level in the hierarchy on the way up? Because I figure that way he'd be ready for the Supremes in a week, max.

  • ||

    Republicans will delay confirmation, praying for an upset in the presidential election


    While I maintain my faith that the GOP will find some Crotchety War Veteran(tm) or an orangutan who farts loudly to lose the election, it is hubris to characterize the departure of Obama as an "upset".

    'Course, hubris is as hubris does...

  • ||

    Death panels begin at home.

  • Barely Suppressed Rage||

    Imagine the field day the MSM would have if someone on the right had written such a proposal regarding conservative justices if a Republican were in the White House.

    It's unbelievable - the left-wing law professors (but I repeat myself) are so unabashed in their naked politicization of EVERYTHING, they don't even see the hypocrisy of treating the SCOTUS as an uber-legislature political body.

    Fuck them, and fuck Breyer and his "Active Liberty."

  • Tony||

    Oh please. I think it's fairly well expected for justices of either political persuasion to strategically time their retirements.

  • Almanian Breyer Ginsburg||

    Who are you? GENERAL WELFARE!!!

    Now, where did my pill box go...? NECESSARY AND PROPER!!

    I think I just shit myself...COMMERCE CLAUSE!

    *dodders off down the hall*

  • ||

    You've just got to read this:

  • Tony||

    What would be beautiful is if Scalia succumbed to nature during Obama's term. He's pretty ancient.

    I fully expect the gentlemanly deference even Republicans give to SCOTUS appointments would be among the last gentlemanly aspects of American politics to disappear should such a situation arise.

  • Liberal Tolerance||

    What would be beautiful is if Scalia succumbed to nature during Obama's term.

    A chip off the ol' proverbial block, my boy Tony.

  • ||

    After Scalia's opinion in Raich and Heller, I surprised some didn't leave the bench due to the smell.

  • Skip||

    Reading between the lines like Media Matters tells me, he is clearly advocated the murders of Supreme Court Justices!!!!111111

    Haven't we learned anything from Tucson?

  • ||

    Good catch, Skip. I myself was wondering, after reading that, if I was supposed to shoot the Justices mentioned. It made me think I should, but then I got high and blew it off.

  • Towelie||

    Hey, you got any weed?

  • TXLaw||

    I think the elephant in the room for Ginsburg and Brennan is that there are not that many justices as liberal as they were on the federal bench. Sotomayor and Kagan are not even close to as liberal as people think they are, and the judges who have had the biggest impact on legal thinking in the last thirty years have been Posner/Epstein types.

  • Pendulum||

    I think you're correct. A recent example that came to my attention was Kagan joining the key part (Part II) of Justice Thomas's opinion in Cullen v. Pinholster.


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