Do you think Ruth Bader Ginsburg did the liberals a disservice by staying so long?
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  Do you think Ruth Bader Ginsburg did the liberals a disservice by staying so long?
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Author Topic: Do you think Ruth Bader Ginsburg did the liberals a disservice by staying so long?  (Read 2156 times)
RRusso1982
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« on: July 28, 2020, 03:52:36 PM »

I am really wondering this.  I think Ruth Ginsburg should have reflected in 2013 or 2014, while Obama was President and the Democrats still controlled the Senate.  An 80 year old woman with a history of cancer.  Had she retired then, Obama could have appointed a 50 year old justice with views similar to hers and that justice could serve for 25 or 30 years.  Now that she has had a cancer recurrence, all the liberal groups are on pins and needles keeping their fingers crossed that she outlasts Trump.  If something happened to her before January 20, 2021, you know full well what Mitch McConnell will do nonwithstanding what he did in 2016.
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brucejoel99
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« Reply #1 on: July 28, 2020, 04:18:18 PM »

No, pressuring justices to retire before they themselves want to does nothing but undermine the judiciary's independence.
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WD
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« Reply #2 on: July 29, 2020, 01:19:52 AM »

Obama and the Democrats really screwed up by not convincing her to leave. We’d have a young liberal justice today and would have to worry.
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Battista Minola 1616
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« Reply #3 on: July 29, 2020, 12:54:33 PM »

Maybe a disservice to liberals she did do, but ultimately the decision on the time of retirement is solely hers. Liberals pressuring her to leave the Court at a time advantageous for their political interest would have been no more than what brucejoel99 said.
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Tamika Jackson
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« Reply #4 on: July 31, 2020, 08:58:17 PM »

I also think you're looking at this with hindsight... Most people didn't think Trump was going to be elected...
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Amenhotep Bakari-Sellers
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« Reply #5 on: August 01, 2020, 04:28:39 AM »

She was appointed by Bill Clinton,  she expected Hillary to beat Trump, that's why she was vocally opposed to Trump in 2016, but part of the reason why Trump won was due to SSM being federalized and Hillary was gonna do it, and Bill Clinton signed the defense of marriage act, and Obama got rid of it
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Battista Minola 1616
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« Reply #6 on: August 01, 2020, 04:32:05 AM »

I also think you're looking at this with hindsight... Most people didn't think Trump was going to be elected...

I do not think Trump has anything to do with this considering that the "good time frame for liberals" was when Democrats controlled the Senate i.e. during 2013 and 2014.
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President Johnson
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« Reply #7 on: August 01, 2020, 04:34:05 AM »

Yes, she should have retired in 2013 or 2014. She probably expected Hillary to win and underestimated partisan obstruction from Republicans for any Obama and later Clinton appointees. Imagine if things worked out the way they should have, we would be talking about 6-3 liberal court now (her successor, Merrick Garland and one more Clinton appointee for Kennedy).
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Gary J
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« Reply #8 on: August 01, 2020, 05:27:43 AM »

To try and reduce some of the problems with federal Judges, I would suggest a constitutional amendment to prescribe a minimum age of 50 and a mandatory retirement age of 70.
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« Reply #9 on: August 01, 2020, 05:41:23 AM »

Yes, she should have retired in 2013 or 2014. She probably expected Hillary to win and underestimated partisan obstruction from Republicans for any Obama and later Clinton appointees. Imagine if things worked out the way they should have, we would be talking about 6-3 liberal court now (her successor, Merrick Garland and one more Clinton appointee for Kennedy).

Let's remember the reason for Obama picking Garland was that his age and moderate-ish credentials would make him easier to get confirmed by a GOP-controlled Senate. Of course we know how it turned out, but if he got confirmed, he'd be more likely end up with the swing bloc, rather than firm liberal bloc, at least on some issues. Also, we can't be certain on Kennedy retiring as he did, under a Democratic president.

In this case, we'd be talking about four solid liberal votes as before (Breyer, Sotomayor, Kagan and RBG's successor), but of course Garland, for all his moderate heroism, would still represent a swing to the left, replacing Scalia. But there wouldn't be a dramatic shift by RBG retiring.
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Blair
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« Reply #10 on: August 01, 2020, 06:26:17 AM »

Yeah fwiw Kennedy retired in 2018 because he was worried that the Senate would flip
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Pericles
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« Reply #11 on: August 01, 2020, 06:45:36 AM »

Partly depends how lucky Democrats end up being, but in hindsight the risk wasn't worth it.
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Kalwejt
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« Reply #12 on: August 01, 2020, 08:05:25 AM »

I think it would be a better idea for President to nominate Supreme Court justices for a fixed 15-year term, without the possibility of reappointment, thus preserving justices' independence from political pressure, but also preventing somebody staying on for too long.

Right now, with a lifetime tenure, a nominee's age is the primary consideration: must be young enough to serve as long as possible. And, on the reverse, Garland's advanced (for a Supreme Court nominee) age was a factor that was intended to make the GOP more willing to confirm.  To be fair, RBG was already 60 when nominated, though it also should be noted that she wasn't first, not even second Clinton's choice. The process of finding White's replacement was pretty convoluted, with several candidates passing on (like Cuomo), or being passed over (like Breyer, due to the "nanny problem").
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SnowLabrador
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« Reply #13 on: August 01, 2020, 12:32:17 PM »

Yes, she should have retired in 2013 or 2014. She probably expected Hillary to win and underestimated partisan obstruction from Republicans for any Obama and later Clinton appointees. Imagine if things worked out the way they should have, we would be talking about 6-3 liberal court now (her successor, Merrick Garland and one more Clinton appointee for Kennedy).
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Fuzzy Stands With His Friend, Chairman Sanchez
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« Reply #14 on: August 01, 2020, 01:13:53 PM »

SCOTUS Justices are not accountable to "liberals" or "conservatives".  They are accountable to the Congress to serve during Good Behaviour. They are inteded to serve for life, and the purpose for that was so they would not be subject to political pressures in their duties. 

Having not resigned in order to allow Obama a timely appointment, is Ginsburg now responsible for sticking it out until she dies on the job?  Would it be good if she stays despite, say, being senile?  William O. Douglas and Joseph McKenna stayed despite obvious mental impairment.  John Marshall Harlan II was nearly blind when he died in office (and Hugo Black died two (2) days later, IIRC).  It's a fair question to ask if that is good for the Nation.

History has shown that Judicial appointments can surprise.  John Paul Stevens, the lone Ford appointee, turned out to be a pillar of the liberal wing of the Court.  Eisenhower appointed Earl Warren and William Brennan, the cornerstones of SCOTUS liberalism in the 1960s.  Byron White, a JFK appointee and a lifelong friend of the Kennedy Family, was surprisingly conservative. Truman appointee Tom C. Clark was not a conservative, but he was not a Court liberal either.  Nixon's appointees were a mixed bag; Warren Burger and William Rehnquist were the bedrock conservatives of the Court, but Lewis Powell was, on the whole, a moderate, even a moderate liberal, and Harry Blackmun was, very much, part of the liberal wing on balance (even if he started out as a Justice that was expected to be conservative).  Mr. Justice Gorsuch and Mr. Chief Justice Roberts have provided some surprises of late.  The idea that one "side" or the other has the Court "locked up" has often proven not to be quite the case.
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Donerail
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« Reply #15 on: August 02, 2020, 09:31:03 PM »

No, pressuring justices to retire before they themselves want to does nothing but undermine the judiciary's independence.
This sounds nice, but that ship seems to have sailed a long time ago. The judiciary is already (irreversibly, without some structural changes) a political battlefield. You can blame the conservatives for that — they're mostly responsible — but talking about judicial independence now feels like unilateral disarmament.
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MarkD
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« Reply #16 on: August 02, 2020, 11:34:17 PM »

To try and reduce some of the problems with federal Judges, I would suggest a constitutional amendment to prescribe a minimum age of 50 and a mandatory retirement age of 70.

No, that's two very arbitrary rules that would potentially deprive us of some great legal minds.

Back in the early 19th Century, two men were appointed to the Supreme Court at the age of only 32 years old. One of the two was Joseph Story, who was pretty easily the greatest Supreme Court Justice of the entire 19th Century. His influence on American law was and still is very widespread.
In the 20th Century, William O. Douglas was appointed when he was 40, Potter Stewart was appointed when he was 43, Byron White was appointed when he was 44, and Clarence Thomas was appointed when he was 43. Do you think these men were too young to be appointed?

Another one of the Court's greatest legal minds ever was Oliver Wendell Holmes, and he stayed on the Court until he was 90 years, 10 months old, the oldest Justice to ever serve. Much more recently, John Paul Stevens retired when he was 90 years, 2 months old. There was nothing wrong with either of them staying on the Court until that age.

Your choices for minimum and maximum ages for membership on the Court, if they had been implemented from the beginning, would have deprived us of a little more than half of Story's magnificent career and more than two-third of Holmes's career. What if we have, right now, in this country, an outstandingly objective interpreter of law who is only 40 years old -- you would make him wait for 10 whole years before he can be appointed? Why? What if there's another outstandingly objective interpreter of law who is 65 years old and who gets appointed at that age, and is so healthy he or she could easily live another 25 years; you would force them to retire after only 5 years? Why?

Your choices are arbitrary and based on a dismal assessment of human nature.
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Gary J
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« Reply #17 on: August 03, 2020, 05:28:55 AM »

The proposed minimum age was designed to address the problem of President's appointing younger nominees who were not jurists of outstanding quality.

If you look at international comparisons, a maximum age of 70 or 75 is common for Judges.

The overall effect of my suggestion is to impose an effective time limit on judicial terms, without producing a situation when a judge is term limited off the bench whilst still young enough to be influenced by the need to seek a new job before retirement.
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Del Tachi
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« Reply #18 on: August 03, 2020, 08:53:13 AM »

No, pressuring justices to retire before they themselves want to does nothing but undermine the judiciary's independence.
This sounds nice, but that ship seems to have sailed a long time ago. The judiciary is already (irreversibly, without some structural changes) a political battlefield. You can blame the conservatives for that — they're mostly responsible — but talking about judicial independence now feels like unilateral disarmament.

The Court has always been a political battlefield; the only difference is now that there's a major political party who cries that it isn't legitimately-constituted (mostly because said party believes they've forfeited the Senate, at least in the long-term), and it isn't the Republicans.
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Mister Mets
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« Reply #19 on: August 04, 2020, 08:20:46 AM »

It's messy. The judiciary is supposed to be independent.
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NewYorkExpress
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« Reply #20 on: August 04, 2020, 04:43:12 PM »

The only group or person RBG is doing a disservice to is herself.

It really isn't healthy for her to have the workload she's having with multiple bouts of cancer, and I think the best thing for her to do would be to retire, regardless of whether Biden or Trump wins. Obviously, it would be better for the country if Biden wins, but the right thing for RBG to do, for the sake of her own health would be to retire anyways if Trump wins.
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Sir Mohamed
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« Reply #21 on: August 05, 2020, 09:27:36 AM »

I think it would be a better idea for President to nominate Supreme Court justices for a fixed 15-year term, without the possibility of reappointment, thus preserving justices' independence from political pressure, but also preventing somebody staying on for too long.

Right now, with a lifetime tenure, a nominee's age is the primary consideration: must be young enough to serve as long as possible. And, on the reverse, Garland's advanced (for a Supreme Court nominee) age was a factor that was intended to make the GOP more willing to confirm.  To be fair, RBG was already 60 when nominated, though it also should be noted that she wasn't first, not even second Clinton's choice. The process of finding White's replacement was pretty convoluted, with several candidates passing on (like Cuomo), or being passed over (like Breyer, due to the "nanny problem").

Fixed 15 year terms would definitely be an improvement over what we have right now. However, it could create some political pressure on justices to step down earlier to allow an outgoing prez of their party to choose a replacement in his final months in office. For example, if RBG's term was up in mid 2017, Dems may have pressured her to resign earlier to allow Obama to make another 15 year appointment. Or a prez doomed in his reelection bid could force justices of his party to leave a few years early to fill their seats rather than his likely successor. You could limit the number of appointments per year or presidency, but that may prevent filling vacancies that arise from death, impeachment or resignation for other reasons (health issues, corruption, etc.). There is just no perfect solution for less partisanship on the court.

A smaller question with fixed terms is how to deal with a hire to be Chief Justice. Does an Associate Justice who is hired to be CJ after 7 years on the court just serving for 8 more years, or is this considered a new term?
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brucejoel99
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« Reply #22 on: August 05, 2020, 09:54:02 AM »

I think it would be a better idea for President to nominate Supreme Court justices for a fixed 15-year term, without the possibility of reappointment, thus preserving justices' independence from political pressure, but also preventing somebody staying on for too long.

Right now, with a lifetime tenure, a nominee's age is the primary consideration: must be young enough to serve as long as possible. And, on the reverse, Garland's advanced (for a Supreme Court nominee) age was a factor that was intended to make the GOP more willing to confirm.  To be fair, RBG was already 60 when nominated, though it also should be noted that she wasn't first, not even second Clinton's choice. The process of finding White's replacement was pretty convoluted, with several candidates passing on (like Cuomo), or being passed over (like Breyer, due to the "nanny problem").

Fixed 15 year terms would definitely be an improvement over what we have right now. However, it could create some political pressure on justices to step down earlier to allow an outgoing prez of their party to choose a replacement in his final months in office. For example, if RBG's term was up in mid 2017, Dems may have pressured her to resign earlier to allow Obama to make another 15 year appointment. Or a prez doomed in his reelection bid could force justices of his party to leave a few years early to fill their seats rather than his likely successor. You could limit the number of appointments per year or presidency, but that may prevent filling vacancies that arise from death, impeachment or resignation for other reasons (health issues, corruption, etc.). There is just no perfect solution for less partisanship on the court.

A smaller question with fixed terms is how to deal with a hire to be Chief Justice. Does an Associate Justice who is hired to be CJ after 7 years on the court just serving for 8 more years, or is this considered a new term?

To be fair, I think most proposed amendments providing for fixed terms (be they 15 years or 18 years or whatever) mandate that appointments to fill unscheduled vacancies (which the bolded situations would technically be) are only for the unexpired portion of the term, & not for a new 15/18/whatever-year term in its own right (in which case, that seems like a pretty good - if not perfect - solution), though somebody can correct me if I'm wrong on that one.
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politicallefty
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« Reply #23 on: August 07, 2020, 04:01:27 AM »

I've never seen a 15-year proposal, but the intent of the 18-year term is based on a nine Justice Court where a new Justice would be appointed every two years. As much as I prefer a limitation on life tenure, I think that only deals with half of the problem.

I think we need a new way of nominating Justices. Perhaps the President alone should not be the one nominating Supreme Court Justices. Maybe some form of bipartisan commission would work best (perhaps a 5-member commission consisting of the President, Speaker of the House, House Minority Leader, Senate Majority Leader, and Senate Minority Leader). That commission could only nominate a Justice with at least one member of the minority party of the total commission in support (or maybe even a unanimous vote). The Senate would then be required to vote on the nominee within a certain period of time. With this setup, the confirmation threshold could be increased to a 2/3 majority.
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MarkD
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« Reply #24 on: August 24, 2020, 07:21:32 PM »

-snip-

I think we need a new way of nominating Justices. Perhaps the President alone should not be the one nominating Supreme Court Justices. Maybe some form of bipartisan commission would work best (perhaps a 5-member commission consisting of the President, Speaker of the House, House Minority Leader, Senate Majority Leader, and Senate Minority Leader). That commission could only nominate a Justice with at least one member of the minority party of the total commission in support (or maybe even a unanimous vote). The Senate would then be required to vote on the nominee within a certain period of time. With this setup, the confirmation threshold could be increased to a 2/3 majority.

I prefer the recommendation made by Alan Dershowitz about 19 years ago in his book "Supreme Injustice: How the High Court Hijacked Election 2000," published in 2001.

"The time has come to change the criteria for Supreme Court nominees and to depoliticize the process of appointing justices. ... (Page 202.)
"The first step must be to distance the process from partisan politics and to demand that greatness be the major criterion for appointment to the high court, as it is in many other countries, and as it has often been in the history of this nation. The Senate and the president could begin by jointly appointing a nonpartisan commission to gather the names of the two dozen or so most distinguished lawyers and judges in the nation, assessed by peer review under the broadest criterion of greatness, without regard to party affiliation, race, gender, ideology or other such factors. After a through investigation, this list would probably be pared down to about ten candidates. The president would be expected -- though he could not be compelled -- to pick a nominee from that pared-down list, unless he could produce good reasons why another person, not included on the commission's list, qualifies as a potentially great justice. Any name selected from the commission's list would carry a strong presumption of confirmability by the Senate." (Page 203.)

Dershowitz does not know how to define the "greatness" of a lawyer or judge, but in my opinion, it would necessarily include a strong commitment to objectivity.
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