March 14, 2006

"Every day I look at John Paul Stevens who's about to turn 86 and I think maybe I can make it too."

Said Justice Ruth Bader Ginsburg yesterday at the University of Toledo, in answer to a question about how long she would stay on the Supreme Court.

Is there anything wrong with holding one's seat on the Court as long as it is physically possible, in an exercise of political will, because you do not want the current President to appoint your replacement?

27 comments:

Pogo said...

I think age alone should not be a factor in deciding whether or not a judge can continue on.

However, given that the prevalence rate of dementia among the elderly is
75-79 5.6%
80-84 11.1%
85+ 23.6%
meaning that by the time a SCOTUS Justice hits 80, one in ten is likely to have dementia, increasing to more than in one in five by age 85.

A often-defining component of dementia is the lack of insight that one even has cognitive impairment. That is, they lack appropriate judgement. Therefore, we face the prospect of an incapacitated judge unable to tell he/she cannot do the work any longer.

Then what?
P.S. Increasing sleep requirements are a common and progressive finding in dementia, cause unclear.

Wasteland Fan said...

I think it's worthwhile to provide the paragraph leading into the quote used as the title to this post:

"During a question-and-answer session with students and faculty, Ginsburg was asked how long she plans to stay on the court. She said she'll be there as long as she has her health."

While the question at the close of the post is intriguing and I'd be interested in others' thoughts, it seems to me that Justice Ginsburg's comment does not necessarily endorse or even imply the hold-my-seat-until-politically-palatable-to-retire position. I wouldn't be surprised if that did figure into Ginsburg's decision making, but it appears from the story that the reference to Justice Stevens was literally about his impressive health given his age.

Mark Daniels said...

Ann:
Your question assumes a great deal, I think. While justices do inappropriately hang on for fear of a justice being nominated by a President of the other party, Ginsberg isn't so old as to assume this is her motive. Were she ten years older, such political and philosophical issues might be keeping her on the Court.

Mark Daniels

Sean said...

There's nothing wrong with holding your seat as long as possible in an exercise of political will. What's wrong is doing that while protesting that judging is not a political act and claiming that judges should be immune to political criticism. It doesn't profit a judge to protect abortion rights, if his or her soul is corrupted by hypocrisy in the process.

MadisonMan said...

.... by the time a SCOTUS Justice hits 80, one in ten is likely to have dementia, increasing to more than in one in five by age 85.

Can you accurately make such a conclusion based on that study?

The conclusion is true only if the population used to determine the prevalence rate of elderly dementia does not differ significantly from the makeup of Supreme Court Justices. Is the class of population that includes Supreme Court Justices well-represented in the study?

A more robust statistic might be the health and alertness of each Justice's parent at advanced age.

Blue said...

SCOTUS justices are appointed for indefinite terms specifically to remove politics from the equation. They don't serve at the will of the current administration. For this reason, the justices themselves should not consider the politics of their own retirement, but rather other factors such as their own well-being and their desire to pursue other interests. The factors that are properly considered at the start of their terms (their qualifications to serve) should be considered at the end of their terms as well.

Ann Althouse said...

Mark Daniels: "Your question assumes a great deal..."

It's a hypothetical! I can put any assumptions I want into it! Yes, I used Ginsburg's comment to set it up, but I didn't say she was doing that, or that Stevens was. Make whatever inferences you want based on the behavior you observe, the statements they make, and commen sense thinking about what judges won't say out loud.

Goesh said...

His Clerks are about ready to start sneaking up behind him and putting those yellow sticky notes on his back that say "kick me". It's getting to that point you know. What is needed in Government is a Geezer Banishment Clause that sends anyone upon reaching their 75th birthday out to pasture with a bib and gold watch and Depends. We all steadily approach that end so let us hope we realize the necessity of allowing someone else to replace us and quit lingering and dawdling and tottering around pretending to be vibrant when we are not. I am reminded of the geezer Natcher, a US Representative who was hauled in one time on a damn gurney to cast a vote. He was about 200 years old and gasping his last breath. This kind of nonsense does not instill faith in Government.

MadisonMan said...

What is needed in Government is a Geezer Banishment Clause that sends anyone upon reaching their 75th birthday out to pasture with a bib and gold watch and Depends.

So what you're saying is that Reagan should not have been allowed to serve his second term after having been elected?

Truly said...

Something else to keep in mind is Ginsburg's comparatively poor health--hasn't she already had one bout of cancer? I wonder if she'd want to stick around through surgery, chemo, radiation, etc. rather than focus on getting well.

I guess it's about your priorities. O'Connor left to spend more time with her husband. Rehnquist died in the saddle (as it were). I, personally, wouldn't stick it out no matter what, but maybe she feels differently.

My con law professor once had dinner with Ginsburg, and said she was the least interesting conversationalist he'd ever met. She practically needed prompts to know when it was her turn to say something.

Pogo said...

Re: "A more robust statistic might be the health and alertness of each Justice's parent at advanced age."

No, it wouldn't. Family history is not terribly reliable for predciting one's own risk, sad to say.

People who reach the level of the Supreme Court are somewhat less likely to get dementia, due to the positive effect of education. But the risk is still pretty high, and in the community-dwelling elderly, living independently, there is an astonishing number of folks with impaired judgement.

While formal cognitive testing would sort this out, who's going to suggest it?

A good proxy measure? If family members are willing to let an elderly Justice drive them somewhere, they likely have adequate judgement. Would you let Justice Stevens drive you downtown?

Gahrie said...

At least two Justices stayed on so long, that their collegues stopped counting their votes: William Douglas (FDR) and Joseph McKenna (McKinley). That being said, the only way to remove an unwilling Justice is impeachment. If Congress feels a Justice is staying too long, they should have the political courage to impeach them. By the way, Justice Stevens comes from a family that has several members who were productive long into their later years.

Nathan Hall said...

I'm just racking my brain to find some other statesman who might have been hauled in on a gurney for important consultations and votes. Oh yeah, it was Ben Franklin.

teddy_kgb said...

All things being equal, if I had spent my entire life trying to reach the pinnacle of my profession and actually got there, you would have to pry my lifeless body out of the chair before you got me out the door.

Goesh said...

Yes, Madisonman,"...any duffer or dufferess upon attaining their 75th birthday shall be mandated to retire regardless of their position and quality of service rendered to the Citizens of the United States."
MGRC 37.023

Eli Blake said...

What we see however is that we now have an administration that has been fast and loose with the rule of law. Their attempt turn the Moussaoui death penalty hearing into a Kangaroo court by telling witnesses what to say is only the latest example.

Under the circumstances, I would suggest that any justice who values the rule of law should not retire while this crew is in charge.

jakemanjack said...

I don't think Ann is that far off, considering that just recently Ginsburg was caught with her face planted on the podium - catching elderly woman zzzs on the bench. That's just wrong. The woman needs to hang it up.


3 words:

Weekend
At
Bernie's

XWL said...

but it appears from the story that the reference to Justice Stevens was literally about his impressive health given his age

How many of the same people admiring Justice Stevens' impressive health will be happy if in 2038 a 90 year old Justice Thomas, an 88 year old Justice Alito and an 83 year old Chief Justice Roberts were holding on for another election cycle? (Assuming they were still alert mentally, Justice Scalia and Justice Kennedy would be 102 by then, would that be admirable also?)

Certainly technology becomes a consideration for imposing some sort of upper limit on the number of years a Justice can serve.

It's possible that breakthroughs in life extension are just around the corner (or at least within 25 years) and the upper limit for life spans could increase significantly.

Would it be reasonable for a Justice to sit on court for 50 years, 100 years?

jeff said...

While I can understand her rationale for wanting to stay on as long as she has her health, I can't help but wonder what's she is missing out on doing in what should be her retirement years.

DRJ said...

Supreme Court justices, like all federal judges except bankruptcy judges, are appointed for life and I think they should be able to serve as long as possible. Being a conservative, that's especially hard for me to say when it comes to Justices Stevens and Ginsburg. I hope that if their health or mental abilities become significantly impaired, they will voluntarily step down. I felt the same way about Chief Justice Rehnquist, but it should be their decision absent mental instability.

As long as our system has lifetime appointments, and I think we have them for a good reason, then they should be able to serve for life. Now when it comes to people like Strom Thurmond and Robert Byrd ...

Patrick Byrne said...

Nathan,
RBG is NO Ben Franklin. Please do not infer as much.

vbspurs said...

All things being equal, if I had spent my entire life trying to reach the pinnacle of my profession and actually got there, you would have to pry my lifeless body out of the chair before you got me out the door.

Hell yeah.

I say to Justice Ginsburg, go for it!

If her mind is sharp enough, on the contrary, the legal information she has culled throughout her life is of such enormous breadth, precisely due to her age, that it's a plus.

If you can last it out, who cares if you do so for political or personal reasons?

Besides, I'm very anti-"mandatory retirement age".

Cheers,
Victoria

mcg said...

I think that as long as the other justices continue to allow her to catch up on her much-needed sleep during oral arguments, she should have no trouble making it.

Jack said...

Is there anything wrong with holding one's seat on the Court as long as it is physically possible [...] because you do not want the current President to appoint your replacement?
If this is the only reason, there is plenty wrong with it:

1) If the founders were right that the courts should be insulated from politics -- as I believe every member of the current aver, sincerely or not -- then holding out is counter productive. This is a weak argument because the process has already become so politicized, but stepping down gracefully can send a powerful message. The Court has often adopted policies intended to reinforce its high standards. (And, yes, this does apply to Scalia as well as Ginsberg.)

2) There is no guarantee that the next president will be any better than the current one. Suppose Rehnquist had outlasted Clinton only to be stuck with Gore. For that matter, suppose a liberal justice had been hoping for Gore and had got Bush instead.

3) Justices don't always follow the politcs of their appointing president (although this is admittedly more of a problem for conservatives than liberals) so waiting for the next cycle doesn't necessarily confer any advantage.

I would argue that the best way to eliminate the politics from Supreme Court nominations would be to limit terms to 18 years, with one appointment to be made each odd-numbered year. This would not significantly reduce the average time each justice spent on the court (as, I believe, Prof Bainbridge has pointed out) but it would regularize the expectations of when each justice would retire. It might also have the added benefit that a president who made two bad appointments in the first term, would have a tougher time getting re-elected. If Bush had nominated Miers in 2001 or 2003, there is no way I would have voted for him in 2004.

Nathan Hall said...

Patrick,

I was responding to Goesh's deplorable suggestion that the old and physically (but not necessarily mentally) frail should recuse themselves from politics. I obviously wasn't comparing Ginsburg and Franklin in some qualitative sense.

Maxine Weiss said...

Truly: maybe her non-conversational skills were an attempt at being demure/deferential?

Peace, Maxine

Wickedpinto said...

So Ruth admits that SCJ is a political position? The Rep's should use that.

"even Liberal appointee's think that the Supreme court is a political position"

ESPECIALY with the Lefty's salivating over O'Connor.

Rightie's appoint judges, leftie's appoint lefties!

though, even though bush ran on it, it's hard to sell that outside of an election of the executive.