The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 .
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.