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Should Justice Ginsburg retire? Debating term limits for the Supreme Court

When justices are named to the Supreme Court, they hold that seat for life. Ruth Bader Ginsburg is 81, the oldest sitting justice and a powerful voice on the bench. Jeffrey Brown gets views from Erwin Chemerinsky of the University of California-Irvine and Jeffrey Rosen of George Washington University on the political ramifications of a retirement, and the idea of Supreme Court term limits.

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  • JUDY WOODRUFF:

    And now for a different question that justices face.

    When they are appointed to the Supreme Court, it’s a job for life. But should it be? Some are posing that question now being about the oldest sitting justice, Ruth Bader Ginsburg.

    Jeffrey Brown picks it up from there.

  • JEFFREY BROWN:

    And I’m joined by legal experts and court watchers Erwin Chemerinsky, who wrote an essay in Political magazine calling for Justice Ginsburg to step down. He’s the dean of U.C. Irvine School of Law and author of “The Case Against the Supreme Court.” And Jeffrey Rosen, whose interview with Justice Ginsburg just appeared in “The New Republic,” where he’s legal affairs editor. Rosen is also the president and CEO of the National Constitution Center.

    Well, Erwin Chemerinsky, summarize the case for Justice Ginsburg stepping down for us.

  • ERWIN CHEMERINSKY, University of California-Irvine:

    In March of this year, I wrote an op-ed in The L.A. Times urging Justice Ginsburg to step down at the end of the term, which was this past July.

    I said that’s the only way she could be sure that someone with her views and values would take her place on the court. If the Republicans take the Senate in November, President Obama’s ability to picks a successor would be greatly constrained. If a Republican wins the presidency in 2016, a conservative would then be taking her place.

  • JEFFREY BROWN:

    So, Jeffrey Rosen, it’s a kind of political strategy motive, I guess. What’s your response?

  • JEFFREY ROSEN, George Washington University:

    Well, I asked Justice Ginsburg what her response was to the calls that she resign, and she said she responded to academics who called for her resignation, who better than I could get through the Senate right now?

    And I think her position is basically, justices in the past have resigned either because of ill health, like Justices Marshall and Brennan, or because they literally wanted to go hiking, like Justices Souter and O’Connor, who Justice Ginsburg talked about. And she feels and the interview confirmed that she’s at the height of her power. She’s writing opinions faster than anyone else.

    She’s become a fiery voice and leader for the liberal opposition. And she feels that, given that fact, there is no need for her to resign.

  • JEFFREY BROWN:

    And, Erwin Chemerinsky, you’re not making that argument in any way, are you, that she’s impaired in any way?

  • ERWIN CHEMERINSKY:

    Of course not.

    This isn’t about her ability to be a terrific justice. This is the question of, how long is it likely she will stay on the court and who will replace her? She’s 81 years old. If the Republicans take the Senate, if a Republican is elected in 2016 — it’s highly unlikely that a Democratic president will be able to pick a progressive for her seat.

  • JEFFREY BROWN:

    Is it a good idea for justices to be watching the midterm elections, who controls the Senate? Do we want them to be doing that?

  • ERWIN CHEMERINSKY:

    Of course we do.

    And we have got to expect that they will. Justice Ginsburg cares deeply about the issues that come before the court. If she wants somebody with her values and views, or Justice Scalia wants someone with his values and views on the court, it all depends on who is the president and who is controlling the Senate.

  • JEFFREY BROWN:

    Well, so, Jeffrey Rosen, you told us what she said to you. What do you think? I mean, should she be looking at the midterm elections and thinking about the legacy of her point of view?

  • JEFFREY ROSEN:

    You know, justices, it’s said, follow the election returns, but I’m not sure it’s the midterms that they actually follow as well.

    (LAUGHTER)

  • JEFFREY ROSEN:

    You know, I’m sure she’s concerned about her legacy. Of course she is. And she must be betting on some level that a Democrat has a good chance of being elected president the next time around.

    But, given that bet, I think that it’s perfectly appropriate for her, at the height of her powers, at a time when, more than any other justice, she’s become a galvanizing leader of the liberal opposition, for her to continue the service that she’s doing so ably.

  • JEFFREY BROWN:

    Do you think, Jeffrey Rosen, that any particular cases — there’s been talk — for example, gay marriage may get taken up again, something she might care very deeply about. Is that a factor for her perhaps in staying?

  • JEFFREY ROSEN:

    She, even more than some of her liberal colleagues, is an uncompromising voice for liberalism on the court.

    And we discussed cases in which she wasn’t willing to compromise, such as the recent Hobby Lobby case, where Justices Kagan and Breyer took a separate position. Bush v. Gore also was a case where Justice Ginsburg, unlike some of her colleagues, was unwilling to compromise.

    And I think she believes, as the senior associate justice responsible for assigning the dissenting opinions, that she has a unique ability and she’s doing it very well to convince all of the liberals to converge around a single dissent, and I think that she believes that she more than anyone else who could get confirmed right now, as she said, really can defend liberal values better than anyone else.

  • JEFFREY BROWN:

    Erwin Chemerinsky, it sort of raises an old question in part, which is, should there be term limits or age limits for Supreme Court justices?

  • ERWIN CHEMERINSKY:

    I do believe there should be term limits for Supreme Court justices.

    It’s one of the things that I argue for in my new book. Life expectancies thankfully are much longer today than they were in 1787, when the Constitution was written. Clarence Thomas was 43 years old when he was confirmed for the Supreme Court in 1991. If he remains until he’s 90, the age which Justice Stevens stepped down, he will be a Supreme Court justice for 47 years.

    Elena Kagan, John Roberts were each 50 when they were confirmed for the court. If they stay until they’re 90, they will be there for 40 years. That’s just too much power for one person to exercise for too long a period of time.

  • JEFFREY BROWN:

    Jeffrey Rosen, what do you think? Does the system need changing?

  • JEFFREY ROSEN:

    There’s a decent argument for term limits. Erwin has just made it very well. But it would require a constitutional amendment. And, in practice, that’s just not going to pass.

    I guess the argument against term limits is that justices can really mature and change. One thing that emerged in our interview, I asked her, when you were appointed, Justice Ginsburg, people thought you were an incrementalist, or a minimalist, or a judge’s judge. And, all of a sudden, now you’re on fire. You have found your voice. You’re the leader of the opposition.

    And I feel, as a longtime observer and friend of Justice Ginsburg, that she has found her voice, that she’s gained the confidence to really not only be a legal technician, but a powerful voice for liberal constitutional ideals, that she’s grown on the job, and she’s inspiring young women especially all over the world. She’s become an Internet sensation.

    She’s loving the fact that she’s inspiring people. And it’s a testament to growth and the maturity and the virtues of really learning how to do the job and gain…

    (CROSSTALK)

  • JEFFREY BROWN:

    All right.

    Jeffrey Rosen, Erwin Chemerinsky, thank you both very much.

  • ERWIN CHEMERINSKY:

    Thank you.

  • JEFFREY ROSEN:

    Thank you.

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