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With the Supreme Court’s term winding down and Republicans’ midterm election prospects on the rise, some liberal legal advocates want Justice Ruth Bader Ginsburg to retire this summer. That way, President Barack Obama can appoint a like-minded successor while the Senate is still under Democratic control.
Ginsburg, 81, is the oldest member of the court. She has battled early-stage colon and pancreatic cancer and is widely seen as the next justice to announce her retirement. Former Justice John Paul Stevens added to the speculation when he told ABC News earlier this month that Ginsburg has consulted with him about when to step down.
Aside from her age and health considerations, Ginsburg, the senior member of the court’s liberal wing, also may want Obama, a former constitutional law professor with a similar legal world view, to name her replacement. Stevens told ABC that he personally believes “it’s an appropriate thing to think about your successor.”
While Obama has more than half of his second term ahead of him to fill potential Supreme Court vacancies, growing concerns that Republicans will take control of the Senate in November have intensified some liberal scholars’ calls for Ginsburg to step down.
“I do not minimize how hard it will be for Justice Ginsburg to step down from a job that she loves and has done so well since 1993,” Edwin Chemerinsky, dean of the law school at the University of California at Irvine, wrote in a Los Angeles Times op-ed on Ginsburg’s 81st birthday in March.
“But the best way for her to advance all the things she has spent her life working for is to ensure that a Democratic president picks her successor. The way to facilitate that is for her to resign this summer.”
Chemerinsky highlighted the importance of the midterm elections in his assessment. Democrats currently have a 53-45 advantage in the Senate, with two Independents who caucus with them. But they are defending 21 seats in the fall, compared with 15 for Republicans, and the president’s party typically loses seats in midterm elections.
While Chemerinsky wrote that Obama “can have virtually anyone he wants” for the Supreme Court if Democrats take the Senate, that would not be the case if Republicans take over, said Ian Millhiser, a senior policy analyst at the Center for American Progress, a liberal think tank with close ties to the White House.
If a Supreme Court vacancy arises with the GOP in control of the Senate, Obama may be inclined to put forward a “really safe pick,” such as Patricia Ann Millett, a widely praised judge on the Court of Appeals for the District of Columbia Circuit, Millhiser said.
Obama may be less likely to nominate someone more in the mode of Ginsburg, such as Judge Cornelia “Nina” Pillard, another member of the D.C. appeals court whom Millhiser called “arguably the preeminent women’s rights litigator of her generation” and his own personal top choice for the court.
Republicans “can skim a few potential nominees off the top if they control the majority,” Millhiser warned.
If a Ginsburg retirement announcement were to come this year, recent history suggests it would occur soon — or would have occurred already.