Opinion: Ginsburg and Breyer, both integral voices on the Supreme Court, should not have their retirements expedited as they remain important parts of the Supreme Court.
The appointment of Supreme Court Justices is among the most impactful and enduring actions a president will do while in office. Though a president is term limited, justices serve for life. President Barack Obama over the course of his term has appointed two justices, Sonia Sotomayor and Elena Kagan, replacing David Souter and John Paul Stevens. With a little more than two years left in his presidency, Obama will potentially have the opportunity to appoint another justice.
Two of the more liberal justices on the court—Ruth Bader Ginsburg and Stephen Breyer—are two of the older members as well. Should one or both of the justices not retire during the Obama term, there remains the chance that a Republican president will be able to appoint the next Justice, which would further tilt the conservative balance of the Court. If the president is able to appoint another justice to replace either of the two, it is good news for liberals.
However, if the justices remain through the Obama administration and are replaced during the next presidency, assuming that next president is a Republican, it will mark a tremendous win for conservatives.
It is still too far off to tell for certain, but by the way things are looking at the moment, the Democrats will either have a weakened majority or no majority in Senate by the time November comes. Even though a confirmation only requires a simple majority, there is always the prospect that a senator could filibuster the nomination, which would require 60 votes to surpass. This leaves the optimal time for the president to select a new justice to occur this summer. The president’s choice is contingent upon the choices of Ginsburg and Breyer.
The president or Congress cannot simply force a justice off the bench by decree. The only way for a vacancy to happen is through retirement, death or impeachment. Neither of the two justices is likely to be impeached. It is also a taboo subject for the president to call on either of them to retire without a de facto infringement of the separation of powers.
Currently, Justices Ginsburg and Breyer are resisting calls to retire, as they should.
Ginsburg—even in her advanced age—is one of the preeminent legal minds in our country, and Breyer remains an important voice on the Court’s liberal side. Neither should be discussed in terms of political opportunism, but rather should be celebrated for their contributions to the American legal system. Ultimately, the choice to leave or stay on the Supreme Court resides with the two justices rather than with any executive or public opinion.