Justice Ginsburg Hints Next President May Pick Her Replacement

Justice Ruth Bader Ginsburg plans on staying on the U.S. Supreme Court for the time being, creating the possibility that her seat will be a factor in the 2016 presidential election.

On July 30, Ginsburg sat down with Katie Couric for an interview for ABC News and Yahoo News in a content-sharing deal between the network and web company. “All I can say is that I am likely to remain for a while,” Ginsburg told Couric.  

The 81-year-old Ginsburg specifically said she would like to stay on the High Court past the age at which Justice Louis Brandeis stepped down. Brandeis was the first Jewish justice on the nation’s highest court and set the record for a Jewish justice when he retired at 82.

Ginsburg evidently wants to beat that record. Brandeis was exactly three months past his birthday when he stepped down. Ginsburg did not specify whether that means she wants to pass precisely that age, which means she could step down during the summer of 2015, or if she wants to go until at least age 83, which would put her in the summer of 2016. Many justices try to retire during the Court’s annual summer recess to avoid national disruption and allow an orderly transition.

Asked how she would decide when to retire, she replied, “When I can’t do the job full steam.” Her husband Martin died in 2010, her children are grown, and she loves her job. As long as Ginsburg believes a liberal Democrat may succeed Obama as president in 2016, there’s no reason for her to leave the Court. So long as her famously brilliant mind remains sharp, she might choose to follow the path of Chief Justice William Rehnquist to live out the rest of her life in office.

Liberals have been pushing the 81-year-old Ginsburg to retire, citing their goal of keeping that seat in liberal hands. Ginsburg is a leader of the liberal wing of the Court which adheres to the idea of a “Living Constitution”—that judges should interpret the Constitution and all laws in light of what that judge believes to be wise, enlightened, and leading to good outcomes, even if that sometimes involves disregarding the meaning of certain words.

Conservatives oppose this concept because it’s anti-democratic. In a democratic republic the people get to rule themselves. Conservatives believe freedom includes being free to vote for dumb politicians who pass dumb laws. Judges are not the national babysitters who have a right to trump democracy anytime they want when they decide the American people are too dense to run their own lives.

Examples of this clash of judicial worldviews run the gamut of economic, social, and national security issues, infecting every area of law. Since America is a nation of laws, this clash impacts every area and aspect of American life.

For example, in 2008 the Supreme Court in Boumediene v. Bush held 5-to-4 that foreign terrorists captured on foreign battlefields and held at a military facility on foreign land (Guantanamo Bay, Cuba or “Gitmo”) could claim the writ of habeas corpus. That constitutional right provides that any person held by the government can demand to face specific charges and process to defeat them, or otherwise be released.

The history of habeas corpus shows it only applies on American soil. If it has any application on foreign soil, it would only be for American citizens held by American agents. It plainly does not apply to foreign terrorists held by the military at Gitmo. Moreover, generally speaking it applies to domestic law enforcement, not the military in a wartime operation.

Yet five justices thought it was fair and just for foreign military combatants to have habeas corpus, so they said that the U.S. Marines had controlled Gitmo for so long that it was “de facto” American soil—and that American soldiers should be held to the same standard as police officers, and that combatants from a foreign army should be treated like criminals—and thus habeas corpus applies. The courts have been clogged with habeas petitions from Islamic terrorists ever since.

Another example is gun rights. The Second Amendment says “the right of the people to keep and bear arms, shall not be infringed.” History proves this provision was to empower the American people to defend themselves against any force that would try to take away their freedom, whether foreign invaders or a tyrannical president who tried to impose martial law.

But four justices made it clear they don’t like guns. (Justice Stephen Breyer mentioned several times during oral arguments in 2008, and again in 2010, that guns kill people.) So they interpreted the Second Amendment in such a way that they argued it gives no American citizen the right to own a gun and that government could completely ban gun ownership.

The same is true for economic issues. Ginsburg voted in the 5-to-4 Ledbetter case that the 180-day time limit written in federal law to bring a sex-discrimination employment claim should be ignored for a woman who waited after that deadline in order to sue shortly after she retired. The majority voted that Congress decides how long a person has to bring a claim, and courts have no jurisdiction to ignore what Congress has written. Ginsburg disagreed, essentially because she thought it wasn’t fair under these circumstances.

Just this year she was in the 5-to-4 dissent in Utility Air Regulatory Group v. EPA, where Congress specified a certain quantity of pollutant that had to be emitted before the EPA had power to regulate it. The EPA ignored that number and invented its own number (which was drastically different) in order to claim the power to regulate carbon dioxide and create a national carbon licensing system. The majority held the EPA cannot rewrite Congress’s law. Critics argued Ginsburg voted to allow the EPA to do so because she personally believes in manmade global warming.

Also in the recent Hobby Lobby case, Ginsburg wrote a lengthy dissent about how the government can force businesses owned by devout Christians to pay for drugs for employees that can cause abortions. The majority held that regulation is a clear violation of the Religious Freedom Restoration Act (RFRA), which forbids the federal government from enforcing regulations that impose a substantial burden on a person’s exercising his faith. Ginsburg’s dissent was essentially that abortion rights were so important that RFRA should not be an obstacle.

Ginsburg has a history of very serious health problems. She had colon cancer in the 1990s and pancreatic cancer less than a decade ago. She has beaten very tough odds to have lived so long.

Yet ever since Democrats made Supreme Court nominations a super-charged political issue in 1987, justices try not to retire in presidential election years. So if Ginsburg doesn’t retire next year and her health endures, then it’s likely Ginsburg will not leave the bench until after the next president is sworn in. Or if Republicans win the Senate this year and Ginsburg breaks with tradition to retire in mid-2016, there is a good chance Republicans will be able to keep that seat open past Election Day.

Since two other justices are expected to retire during the next presidential term, Ginsburg will determine whether a third seat is in play. The current Supreme Court is so evenly divided that on many issues Americans care about are decided by a single vote. Therefore under any of those scenarios, it seems the future of the Supreme Court will be on the ballot in 2016.

Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.


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