Our Job, Not Hers

March 20th, 2014 / By

Dean Erwin Chemerinsky wants Justice Ginsburg to retire this summer, giving President Obama ample time to confirm her successor. Chemerinksy worries that a Republican will win the White House in 2016 and that Ginsburg’s health will not endure until the next Democratic administration. To avoid the risk of a Republican President replacing Ginsburg, Chemerinsky urges the Justice to resign soon.

In making this recommendation, Chemerinsky assumes that Ginsburg is responsible for preserving her liberal voice on the Court; she should plan her resignation in a way that maximizes prospects for a liberal replacement. But that’s not Ginsburg’s job–it’s a job for liberal voters.

I count myself as a liberal, and a long-time Ginsburg fan. I had the honor of learning constitutional law from then Professor Ginsburg at Columbia Law School, and of clerking for her on the Court of Appeals for the District of Columbia Circuit. No one was happier than I was when President Clinton nominated her to the Supreme Court.

If liberals want to repeat that experience, seeing more nominations by Democratic Presidents, then we need to elect a Democratic President in 2016. To ease the future President’s task, we should also elect a Democratic Senate majority. It’s just that simple.

In 2000, another few hundred Democratic votes would have given the Presidency to Gore. Bush won more decisively in 2004, but the election was still very close: President Bush secured the electoral college by a single state, Ohio. In the popular vote, he prevailed by a smaller margin than any incumbent reelected since 1828.

Obama, on the other hand, is the first President since Eisenhower to claim at least 51% of the popular vote in two different elections. Even in 2012’s “close” contest, Obama’s margin of victory was larger than Bush’s 2004 win over Kerry.

I don’t mean to suggest that the Democrats have an easy shot at the White House in 2016. On the contrary. Polls show that American voters divide closely between Republicans and Democrats, with a substantial number of citizens alienated from both parties. In that context, any national election is up for grabs.

This means that people who want a Democrat to fill any upcoming Supreme Court vacancies have to work for that goal. I’ve leafleted, poll watched, registered voters, or contributed dollars in most presidential elections. In 2008 and 2012, many of us in Ohio hosted out-of-state Obama campaigners in our homes. That’s what it takes to win elections.

I write from the perspective of a liberal, but the same advice holds for conservatives. Voters who want a Republican President to fill any upcoming Court vacancies can–and should–work hard to elect their nominee.

Public fretting about the timing of Ginsburg’s retirement is much less productive. It’s oddly professorial, in fact, to publicly admonish a Justice. Why not address the electorate instead? Tell them how important it will be to protect Justice Ginsburg’s legacy.

Justice Ginsburg has a weighty job, carrying out her duties at the Court. We, as voters and citizens, have an equally important job–electing the President and Senators who will carry out our wishes. Let’s let Justice Ginsburg do her job, while we do ours.

  • 30Rocker

    remember Thurgood Marshall?

  • Contr

    We elected a democratic president twice. Historically, three in a row for the same party is hard. Four is very rare. These things are cyclical.

    But more importantly, older justices should retire sooner, as should older judges, older lawyers, etc. We need to make room for the younger generations, and important decisions in our affairs should not the the exclusive province of octogenarians.

  • Doug

    So long as Justice Ginsburg is healthy and sharp, she should stay on the bench. That goes for all of the Justices. It’s not a political job. It’s a lifetime appointment. Personally, I thought Dean Chemerinsky’s advice was shabby and ill-becoming a serious legal scholar.

    • RAWR2123

      The SCOTUS unfortunately is very political.

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