Failed Efforts to Get RBG and Breyer To Retire During the Obama Administration

RBG ignored Obama's winks and nods. Justice Breyer was not interested in becoming ambassador to France.

|The Volokh Conspiracy |

President Trump was able to appoint two Justices in his first two years. He inherited the first vacancy after Justice Scalia died. But he had to work the second vacancy.  His administration took specific steps to help Justice Kennedy off the Court, and open the seat for Justice Kavanaugh.

President Obama was also able to appoint two Justices in his first two years. In 2009, Justice Souter resigned. He never liked Washington, D.C. And in 2010, Justice Stevens resigned in light of concerns over his health. Between 2010 and 2014, the Democrats controlled the Senate. During this period, there were many public calls for Justice Ginsburg and Justice Breyer to step down.

Now, the New York Times reports that there were also private overtures to open up those two seats.

First, we learn that Senator Pat Leahy tried to use his personal relationship with Ginsburg to nudge her to retire. The timing of this meeting was unclear, but it happened "several years" before 2013.

Several senior White House staff members say they heard word that Senator Leahy had gingerly approached the subject with her several years before the Obama lunch in [2013].

He was then the chairman of the Senate Judiciary Committee, which oversees Supreme Court nominations; he also had a warm relationship with Justice Ginsburg, a bond forged over their shared enjoyment of opera and visits to the Kennedy Center. Asked through a spokesman for comment, Mr. Leahy did not respond.

But Leahy's efforts failed:

One of the former Obama administration staff members who heard discussion of the roundabout outreach by Mr. Leahy was Rob Nabors, who served in a series of White House policy and legislative affairs positions under Mr. Obama from 2009 to 2014. But Mr. Nabors said he recalled hearing that "it wasn't clear that the message was entirely transmitted effectively, or that it was received in the manner it was delivered."

Come on. RBG understood the conversation. She knew what Leahy was trying to convey. She wasn't interested.

Second, in 2013, President Obama asked his White House counsel to set up a meeting with RBG.

When Justice Ruth Bader Ginsburg joined President Barack Obama for lunch in his private dining room in July 2013, the White House sought to keep the event quiet — the meeting called for discretion.

Mr. Obama had asked his White House counsel, Kathryn Ruemmler, to set up the lunch so he could build a closer rapport with the justice, according to two people briefed on the conversation.

Obama was too tactful to outright ask her to step down. Instead, he hinted that the Democrats may lose the Senate in 2014.

Treading cautiously, he did not directly bring up the subject of retirement to Justice Ginsburg, at 80 the Supreme Court's oldest member and a two-time cancer patient.

He did, however, raise the looming 2014 midterm elections and how Democrats might lose control of the Senate. Implicit in that conversation was the concern motivating his lunch invitation — the possibility that if the Senate flipped, he would lose a chance to appoint a younger, liberal judge who could hold on to the seat for decades.

Ginsburg was smart enough to read the polls. She didn't need to be reminded about the politics.

But the effort did not work, just as an earlier attempt by Senator Patrick Leahy, the Vermont Democrat who was then Judiciary Committee chairman, had failed. Justice Ginsburg left Mr. Obama with the clear impression that she was committed to continuing her work on the court, according to those briefed.

Keep in mind how RBG fawned over Obama at the State of the Union addresses. It was a public spectacle. Nina Totenberg recounted how RBG attended Obama's first State of the Union ten days after a cancer procedure.

She was still in considerable post-operative pain when she was released from the hospital, but less than 10 days later, she pulled herself together to attend President Obama's first State of the Union speech

For her to rebuff Obama was serious. But we know that Ginsburg wanted to be replaced by a female President. Query: if Hillary Clinton was the winner of the 2008 election, would RBG have stepped down?

Fun fact: Ginsburg never attended a single State of the Union address by a Republican President. Not for W or for Trump. She always had scheduling conflicts.

Third, we learn that the Obama White House never discussed aloud trying to get Ginsburg to step down.

Robert Bauer, who served as Mr. Obama's White House counsel for part of his first term, said he recalled no discussions then of having Mr. Obama try to nudge Justice Ginsburg to step aside. …

Neil Eggleston, who became White House counsel in April 2014, said that he did not remember anyone proposing that another attempt to ease Justice Ginsburg toward resignation would do any good.

"I think it is largely not done," he said. "Suggesting that to a Supreme Court justice — she is as smart as anyone; she doesn't need the president to tell her how old she is and what her timelines are."

In hindsight, the Obama staffers regret not making the statement more explicit:

While Mr. Obama's own talk with the justice was tactful, changing conditions should have made his implicit agenda clear, according to the two people briefed about the meeting, who spoke only on condition of anonymity given the sensitivity of the topic. Democrats were worried about the prospect of losing the Senate. And the president had invited no other justices to lunch.

Eventually Obama gave up:

But the failure of that conversation convinced the Obama team that it was pointless to try to talk to her of departure. The next summer, when another Supreme Court term closed without a retirement announcement from her, the administration did not try again.

Fourth, we learn that RBG conveyed her disapproval of those who urged her to resign:

She was clearly annoyed at any public suggestions that she step down. In 2014, Erwin Chemerinsky, now dean of the law school at the University of California at Berkeley, wrote articles, appearing in The Los Angeles Times and Politico, declaring that for the long-term good of progressive values, Justice Ginsburg should step aside to make way for a younger Obama appointee.

"It was certainly conveyed to me that she was not pleased with those who were suggesting that she retire," Mr. Chemerinsky said.

In case you are curious, I have not heard a word from Chief Justice Roberts about my frequent calls for him to step down.

Fifth, Walter Dellinger tried to pull an Arthur Goldberg on the most famous Arthur Goldberg clerk:

Given his previous tenure as chief counsel to the Judiciary Committee, Justice Stephen Breyer might have been a more pragmatic target of overtures. Walter Dellinger, a former solicitor general, mentioned to the White House counsel's office during the Obama administration a plan he conceived to motivate Justice Breyer, a known Francophile, to start a next chapter.

"My suggestion was that the president have Breyer to lunch and say to him, 'I believe historians will someday say the three greatest American ambassadors to France were Benjamin Franklin, Thomas Jefferson and Stephen G. Breyer,'" recalled Mr. Dellinger, who recently joined Vice President Joseph R. Biden Jr.'s campaign team.

A friend joked that Breyer would have preferred to be the French ambassador to the United States. Think of all the foreign emoluments! And he wouldn't even have to move.

Dellinger's ploy did not work.

Although it is not clear how, word of Mr. Dellinger's idea made its way to Justice Breyer.

Mr. Dellinger said that when he ran into Justice Breyer at a holiday party not long after Mr. Trump was elected, the justice pulled him aside. "So Walter," he asked, "do you still want to ship me off to France?" Mr. Dellinger, who sensed the justice was ribbing him, responded, "Mr. Justice, I hear Paris isn't what it used to be."

Now, Dellinger has to admit that Breyer's presence these last few years were important.

Mr. Dellinger added that he now thought Justice Breyer was correct to resist the idea, saying "he has made a tremendous contribution in the ensuing years." Justice Breyer's office declined to comment.

If Obama had swapped Breyer for Merrick Garland, would anyone have really noticed?

For what it's worth, President Trump was able to open up a Fifth Circuit vacancy by offering Judge Prado the ambassadorship to Argentina.

Finally, the Times recounts how the Trump administration greased the skids for Justice Kennedy's retirement:

President Trump's first White House counsel, Donald McGahn II, the primary architect of the administration's success in reshaping the judiciary, helped ease the way for Justice Anthony Kennedy's retirement in 2018, which allowed Mr. Trump and a Republican-controlled Senate to lock down his seat for another generation.

Mr. McGahn sought to make the justice comfortable with the process by which a successor would be chosen, according to people briefed on their conversations, by seeking his advice on potential picks for lower-court vacancies and recommending that Mr. Trump nominate one of his former clerks, Neil Gorsuch, to fill an earlier vacancy. (Brett Kavanaugh, whom Mr. McGahn recommended to fill Justice Kennedy's seat, was also one of his clerks.)

As much as I grouse about Justice Kavanaugh, his candidacy may have been the final push to get AMK to retire. Don McGahn can never get enough credit for opening up the Kennedy seat.

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  1. Is there a missing “to retire” in the headline? The way you wrote it, sounds more like failed assassination attempts.

    1. More likely failed suicide attempts.

  2. “too tactful to outright”

    Silly. What was the downside in flat out asking?

    De l’audace, encore de l’audace, toujours de l’audace.

    1. Obama is a low t passive aggressive nerd he didn’t want to get big dogged by a ninety pound woman.

      1. “Obama is a low t passive aggressive nerd he didn’t want to get big dogged by a ninety pound woman.”

        If you are a conservative in America, Matt Buckalew, you know — after getting stomped in the culture war — all about being someone’s submissive bitch.

        Open wider, Matt . . . you betters are not done shoving progress down your whining, bigoted throat. Not nearly.

        1. Arthur, as you know I ordinarily find your culture war rhetoric rude and counter-productive. But as Matt Buckalew is a racist stan and alt right wannabe, I say give it to him sideways.

          1. Lol shut up nerd. You are old and weak I’m young and 11 inches hung.

            1. Lol. Tell your mom to call me when she gets the feeling back in her jaw.

        2. Lol your sexual frustration is palpable. Just get pussy incel it’s so fucking easy.

          1. And your overcompensating is palpable. And pretty amusing.

    2. Presumably, that she might have been put off and refused, where the more subtle approach could have proven successful.

  3. “If Obama had swapped Breyer for Merrick Garland, would anyone have really noticed?”

    Six months after he dies or retires, not even his family will recall Breyer was even on the court.

  4. Thanks for reminding everyone about Souter’s final stab in the back on the way out.

    1. Stevens was nominated by Ford as well.

  5. She did not want to go quietly. She wanted to die on the bench.

  6. I’m getting real sick of seeing your name at the top of the page when I come to the VC, Josh. And yet another post about RBG.

    Learn some blogging etiquette and get a life, for crying out loud. You’re worse than David, at this point.

    1. It’s still a free country. You could just ignore his posts, or don’t come onto VC at all.

      1. Gee, thanks, bud. None of that really occurred to me.

        I come to the VC to get the smartest conservative/libertarian takes on current and legal events. Josh is getting in the way of that.

        1. Prof. Blackman is the future of conservative legal academia in America.

          On behalf of the entire victorious liberal-libertarian mainstream — thank goodness for that!

          1. He’s the epitome of someone who gets treated like an expert, not because anything he says is actually smart or insightful, but because he won’t stop talking.

        2. Well if it occurred to you, you would not act like a whiny child, and just ignore his posts. I too like VC, but I don’t read all the posts, only those I think might be enlightening.

          From Wikipedia:

          Agency (sociology)
          In social science, agency is defined as the capacity of individuals to act independently and to make their own free choices.

    2. This was an excellent historical recap.

  7. Very simple. She reasoned Hillary would win, as did the entire left. She miscalculated, as did the entire left.

    1. We have Comey’s and McCabe’s Keystone Cops routine in the last 2 weeks of the campaign to thank for this nightmare.

    2. She reasoned Hillary would win, as did the entire left.

      If you did otherwise it doesn’t speak well of your reasoning. 25% bets do pay off one out of four times. The fact that Trump pulled off a triple bank shot doesn’t mean he was the better bet.

      1. That’s true. But besides the point.

        Based on the shrieking we have been hearing in the last week, it is apparent that who replaces RBG is very important to a large swath of people. Including RBG herself, who, we are told, had a “dying wish” that she be replaced by someone other than Trump.

        Now I agree that a 25% bet is not great odds, but it’s not nothing either. You wouldn’t bet your child’s life on 25% odds, if you could help it.

        If her seat was that important, the safe bet was to retire in 2013 or 2014, when she was 80/81, and had served 20/21 years on the SCOTUS bench, after a distinguished legal career as a lawyer and then appellate judge. Obama was then president, the Democrats controlled the Senate, and it would have been easy to confirm another liberal to her seat.

        But she would not give it up, either for love of power, or hubris, or both. So she played the odds, and lost.

      2. If you did otherwise it doesn’t speak well of your reasoning. 25% bets do pay off one out of four times. The fact that Trump pulled off a triple bank shot doesn’t mean he was the better bet.

        Talk about piss-poor reasoning. The odds makers getting it so wrong is not an indictment of those who got it right. Between Clinton taking for granted and completely ignoring states that weren’t sure things, insulting roughly 25% of all voters, her entitled attitude about the presidency, etc…it’s not like the outcome was completely unforeseeable. It just depended on what data you chose to use and how much weight you gave to it.

  8. W Bush was instrumental in getting Collins to vote for Kavanaugh…Trump has very little to do with any of the judicial appointments which is why it has been such a smooth and successful operation.

  9. Democrats wanted RBG to retire under Obama’s second term, they had no idea who the candidates would be until late in the last year of his administration..
    Democrats are lauding RBG publicly but damning her privately. You can bet on that. Very hateful to damn the newly dead.

    1. I am a former elected and appointed official of the Democratic Party. I am not damning Justice Ginsburg. I have not heard of that among Democrats with whom I converse daily familiar. What experience or evidence precipitates your assertion?

      Thank you, if you have the courage to respond.

      1. Kirkland — I am not surprised you’re a Dem.

        1. Wow, what tipped you off? He’s been playing it pretty close to the vest until now.

  10. A year ago, I asked my Facebook Friends to pray for what happened last week. I never anticipated the masterful timing of the entity that answers prayers. It was perfect to drive the America haters bats. She signed the death warrants of millions of babies, who had done no one any harm. Among them, 30% were black, or 2.5 times their prevalence in the living population She was a white supremacist’s dream, as all feminists are, by her mass murder rampage.

    1. A year ago, I asked my Facebook Friends to pray for what happened last week. I never anticipated the masterful timing of the entity that answers prayers.

      If you’re going to be a garbage person, I suppose you may as well be proud of it, huh? In for a penny, in for a pound.

      1. He’s not a garbage person, even though I completely disagree with him. If one starts with the premise that human life begins at conception, it logically follows that anyone who facilitates abortion is facilitating an act of murder, and that it is appropriate to pray that such facilitators will die. I personally find that view pretty silly — a fertilized egg bears little resemblance to a human being — but I understand it. During the worst part of the COVID-19 epidemic, I knew people who hoped that Trump would die of the virus, so that we would have a President who would do a competent job of combatting the epidemic. Were the people who hoped that Trump would die of COVID-19 garbage people? Insulting those with different views is something our current President excels in, but his example is not one that the rest of us should follow.

        1. Not this public gloating. That is in no way moral.

          Imprecatory prayers are pretty dodgy business to begin with, but to make at least 2 posts boasting about it is not a good sign about this guy’s soul.

          1. Go pray for the long life of Maduro, Putin, and Xi, you Democrat.

      2. Hi, Leo. Democrat elites first killed millions of babies. Now their prank lockdown, for election purposes, will kill 130 million people by starvation. That is caused by their $4 trillion shrinkage of the world GDP.

        These Democrat mass murderers have been far more lethal than all mass murdering tyrants combined. They live among us, legally immunized. You may never criticize the German people of the 1930’s.

  11. Even though it is recent history, I think it gets lost how fast the judicial nomination game changed, even in the span of Obama’s presidency. Breyer 87-9 and Ginsburg was 97-3 on the recommendation of Orrin Hatch. Under GWB, Roberts was 78-22. Alito mustered an attempted filibuster but the gang of 14 wouldn’t sign on. Elena Kagan and Sonia Sotomayor were each around 66-34 in the face of a toothless GOP.

    And then the nuclear option happened in November 2013. Had Ginsburg retired before the nuclear option, Obama was probably in shape to get a candidate across. But once that happened, it was either nominate a super moderate, or perhaps even then nuke the SCOTUS filibuster line since it was inevitable. But I think that was the turning point on when it went from possible to almost impossible, and I’m not sure Ginsburg could see that coming. Before Republicans even took the Senate, Ginsburg told Reuters she wasn’t going to retire in mid-2014 because Obama would need to choose a compromise candidate. Once the Republicans took the senate, Ginsburg’s only real hope was Clinton takes the White House and Democrats take the senate. Otherwise, she was never in a better position than she was post-nuclear option. And like the rest of the country, she probably relied on innumeracy to believe Trump was destined to lose.

    1. RBG made her play, and it failed. Her successor will be on the bench shortly. There is something to the adage: (Wo)man plans, God laughs.

      RBG had a full and rich life that we should celebrate. She was quite a remarkable American. I did not agree with her judicial philosophy, but her many accomplishments in the face of adversity throughout her life, I find inspiring.

    2. Had Ginsburg retired before the nuclear option, Obama was probably in shape to get a candidate across. But once that happened, it was either nominate a super moderate, or perhaps even then nuke the SCOTUS filibuster line since it was inevitable.

      I have a bridge to sell you.

      When Harry nuked the filibuster for all appointments except SCOTUS, he did not leave SCOTUS out from a finely tuned sense of special reverence for SCOTUS, or a commitment to Senate comity. It was because while there were plenty of Executove branch and lower court vacancies to fill, there were no SCOTUS vacancies.

      Had a SCOTUS vacancy emerged before 3 January 2015, and had the Republicans prevented it being filled by fiibustering, Harry would have nuked the SCOTUS filibuster in a nanosecond.

      There is a high political principle involved here – you don’t burn your boats until you have to.

      1. “Had a SCOTUS vacancy emerged before 3 January 2015, and had the Republicans prevented it being filled by fiibustering, Harry would have nuked the SCOTUS filibuster in a nanosecond.”

        And we know this, because in September and October of 2016, when they were convinced they were going to end up in the majority with a Democratic President, Reid and other figures in the Democratic Senate were warning Republicans not to filibuster any Democratic nominees to the Court, or they’d eliminate the filibuster.

        And, yes, they were also discussing getting rid of the legislative filibuster.

        Basically the only reason the filibuster exists at all today, is that McConnell found it a useful excuse for refusing to hold votes on conservative legislation coming out of the House. (Because holding them would expose RINOs who would end up being primaried.) Everybody has known for at least 4 years that it was going away the moment the Democrats hold the Senate and the Presidency at the same time.

  12. Good writeup. Shows the arrogance and self-righteousness of democrats. As we are looking at another Trump term and his 2 additional supreme court picks totaling an unprecedented 5 let us remember this moment when the left utterly failed.

  13. This is all par for the course, in the history of presidents trying to manipulate Court retirements.

    What is not par for the course was the ghoulish death watch of Trump floating names of judges he wold nominate if someone (i.e. Ginsburg) died. We’ve had a number of Supreme Court Justices known to be in poor health and until Trump every President has had the decency to wait until the death happens.

    1. Trump release his list as a campaign tool in 2016.

      1. Yeah, nominees should release a list of who’d they nominate to the SCOTUS. Trump didn’t have a “ghoulish” death watch. He had a “If an opening occurs, I’ll name somebody on this list”

        1. And, in fact, one opening had occurred BEFORE Trump was elected (Scalia) and another occurred because another Justice had the good grace to retire (Kennedy).

          So there is nothing ghoulish about such a list.

  14. But Mr. Nabors said he recalled hearing that “it wasn’t clear that the message was entirely transmitted effectively, or that it was received in the manner it was delivered.”

    Ah, the old “we didn’t get our message across right, we must work harder on explanation and presentation” line. Never “we got our message across fine, but they didn’t like the contents.”

    I think this disease is common to left and right, but it does seem to be more virulent on the left. You do sometimes get to hear of conservative parties admitting that they need to have a rethink about policies and priorities after receiving a good kicking at the polls. But for the lefties it always seems that they did a bad job at explaining policies to the voters. The policies themselves, being perfect, are unalterable.

    Perhaps it’s because lefties are mostly utopians at heart. There’s the promised land, we will get there. One more heave.

    1. I seem to recall RBG saying her mother once advised her that “At times it helps to be a little deaf”.

      This sounds like the perfect application. She listened, got the message and simply pretended like it didn’t happen.

      Unless the message was delivered in unmistakably direct sentences. Something like “Ruth you need to resign now so Obama can appoint you successor.” She still could have ignored it.

  15. In case you are curious, I have not heard a word from Chief Justice Roberts about my frequent calls for him to step down.

    No one is curious Josh. Nobody but you thought anyone cared about your deranged calls for the Chief Justice to step down. That you bring attention to one of many examples of why you should not be taken seriously as a thinker or blogger just provides further evidence of your utter lack of self-awareness. It’s pathetic.

    1. Do we need a tongue-in-cheek emoji now so clueless people like you can get it?

      (I’d post one here, but this system does not allow graphics. Try here:

      https://docs.google.com/document/d/12qbJewco_WLWkH2D30GKYwU-kOMIlbsIAMQvL1SQJKE/edit)

      1. Nobody but you thought anyone cared about your deranged calls for the Chief Justice to step down.

        Wow. That’s some weapons-grade cluelessness right there.

  16. This is the difference between Republicans and Democrats – Democrats try to be honorable, but the Republicans have the gumption to actually get it done.

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