The late Supreme Court Justice Ruth Bader Ginsberg was a wise jurist who made one lasting mistake: She refused to retire during Barack Obama’s presidency (as she entered her 80s) to allow Obama to nominate her successor. Instead, she ran the risk that she would die in office later and hand the seat to a Republican administration. Which, of course, is ultimately what happened, saddling America with a court today that is far right of the nation.
Now Justice Stephen G. Breyer, 82, one of the three remaining liberals on the court, is facing similar calls to step down so President Joe Biden and a Democratic Senate can install a younger justice and prevent history from repeating itself. Breyer should heed those calls.
There is little turf more valuable in the battlegrounds of today’s hyper-polarized politics than the high court, something Republicans have understood far better than Democrats have. Then-Senate Majority Leader Mitch McConnell’s two big court-related stunts in recent years — holding a vacancy open for the last 11 months of Obama’s term so Republicans could fill it, then concocting polar opposite excuses to quickly fill another vacancy in the final stretch of Donald Trump’s term — were cynical, wrong and undeniably game-changing. A deeply divided nation that leans clearly left on issues like abortion rights, gun violence and campaign reform is now under the yoke of a 6-3 conservative Supreme Court majority.
It would still be a more manageable 5-4 conservative majority had Ginsberg heeded the pleas of Democrats who tried to get her to step down while Obama was still in office. “So tell me who the president could have nominated this spring that you would rather see on the court than me?” she said in a 2014 interview in which she defiantly touted her liberal record on the bench.
But now her record is threatened by Ginsberg’s death last September, at age 87, from well-foreseen complications of pancreatic cancer. McConnell rammed through confirmation of Trump’s conservative nominee, Amy Coney Barrett, the very next month. With that painfully predictable turn of events freshly in mind, the rising liberal calls for Breyer’s retirement now aren’t a diminishment of his liberal record but an attempt to preserve it.
The future direction of the court shouldn’t be subject to the whims of mortality. As we’ve argued before, an 18-year term for justices, instead of life, would provide some predictability and make this kind of strategizing unnecessary. But for right now, it is necessary. Republicans are on a cutthroat mission to stack the court and give them the ideological control that voters have increasingly denied them in congressional elections. If Breyer remains on the bench after next year’s midterms, he tempts that fate for the nation.
— St. Louis Post-Dispatch