Back in April, Harvard law professor Randall Kennedy took to the pages of The New Republic to urge geriatric Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg to get the hell off the bench so President Barack Obama could appoint a couple of progressive whippersnappers in their place before losing his reelection bid in 2012. As Kennedy tactfully put it:
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…. 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.
Unfortunately for Professor Kennedy, Justice Ginsburg has decided to reject his sage advice. As USA Today's Joan Biskupic reports:
Ginsburg, 78, in response to a question from USA TODAY, said she recently underwent her annual checkup and was in good health.
The eldest of the nine justices, Ginsburg has repeatedly vowed to stay on the bench through the 2012 presidential election and a few years after that. Yet rumors of a possible retirement continue to swirl, because of her past health problems and because of presidential politics….
Ginsburg has said she at least wants to match the tenure of Justice Louis Brandeis, who retired at age 82 in 1939. That would get her to 2015.