Streetwise Professor

September 19, 2020

Her Way of Leaving It Does Not Become Her

Filed under: Politics — cpirrong @ 3:28 pm

When someone of prominence passes, I often think of Malcolm’s remark in Macbeth about the Thane of Cawdor, executed for treason: “Nothing in his life became him like the leaving it.” How did someone depart this mortal coil, and what does it say about him (or her)?

One one level, one could say that Ruth Bader Ginsberg’s leaving became her. She fought a long battle against cancer with courage.

But at a deeper level, there is something deeply disturbing about her last hours, months, and even years. This is captured by her dying wish: “My most fervent wish is that I will not be replaced until a new president is installed.”

This is disturbing for several reasons. For one thing, her seat on the Supreme Court was never hers to bestow or bequeath. The lifetime appointment of judges is problematic enough: to allow them to dictate, or even influence, that seat from the grave is intolerable, and intolerably presumptuous.

With respect to lifetime tenure, Richard Posner had some good insights:

“I believe there should be mandatory retirement for all judges at a fixed age, probably 80,” Posner writes in the online debate with U.S. District Judge Jed Rakoff. And that retirement age should include justices on the U.S. Supreme Court, Posner says.

“There are loads of persons capable of distinction as Supreme Court justices; no need for octogenarians,” Posner says.

“While many judges and justices have performed OK in old age, I don’t think any of them improved with age, which means they could readily have been replaced with equally good or better judges,” Posner says.

Even beyond the presumptuousness of believing that one individual’s dying wish should bind the living on a matter of such public import, this wish, and Ginsberg’s insistence on remaining on the court despite suffering a devastating illness, suggests twisted priorities that are all too characteristic of this age, and of the governing class. Priorities that elevate politics above all else.

When confronted with imminent mortality, I would hope to focus on important things. Family. Friends. Enjoying the world to the extent that my health permits. Coming to peace with my fate. Trying to focus on the sacred, rather than on the very profane: and little is more profane than politics.

But Ginsberg was so focused on politics and her power to influence it that she hung onto her Supreme Court seat when she knew her time on earth was limited, and was so loath to surrender that power that she attempted to extend it into the afterlife through her dying wish.

Her death in the midst of an already combustible political environment was destined to add fuel to the raging partisan fires. But her dying words have only intensified the conflagration. Within minutes of her words being reported, Obama intoned that her wishes should be respected. If you want to risk your mental health, you can scroll through Twitter and find example after example of threats to riot–or worse–if those wishes are not granted, and Trump nominates and the Senate moves to confirm a replacement.

Rioting, of course, now being the default leftist threat when they don’t get their way.

Why are we at this juncture? Because Ruth Bader Ginsberg decided to let politics dictate the way of her leaving. Or more exactly, the way of her not leaving the Supreme Court, as health and human considerations should have led her to do long, long ago, when such a departure would have caused some civil strife, but nothing to compare to what we are facing now. Given the malign contribution this will make to our already poisoned body politic, it does not become her at all.

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12 Comments »

  1. Why should I believe it was her dying wish? How many witnesses were there, how trustworthy are they?

    I’m sceptical of purported dying wishes just as I’m sceptical about purported death-bed conversions to Roman Catholicism. Because – who says?

    Comment by dearieme — September 20, 2020 @ 6:08 am

  2. If the Republicans hold (as I hope) the Senate, wouldn’t it be prudent to initiate a constitutional amendment that would define the composition of the Supreme Court once and for all? After all, Republicans can pack the court just as well when in majority, can’t they?

    Comment by LL — September 20, 2020 @ 10:15 am

  3. This is well put and a justice’s wishes should be irrelevant in this process. That said, you gloss the supreme chutzpah of the Republican establishment and the fictitious “McConnell Rule”, which was far more damaging than anything RBG might have said.

    Thwarting Obama’s final year pick was the ultimate example of “politics above all else” and flipping that script today is the icing on that particular cake. It is far more flammable fuel than anything the late, great justice has said in her last months.

    Comment by MjD — September 20, 2020 @ 11:48 am

  4. Ginsberg could have retired at 80 and Obama could have replaced her.

    Comment by Joe Walker — September 20, 2020 @ 2:35 pm

  5. Instead of a number of judges fixed by legislation, a relatively easy reform is to have the president appoint justices on a fixed schedule (the 2nd year of his 4-year term, for example) and let the size of the court vary. No constitutional amendment needed. As it is now, when a justice dies (or retires) the political process has the double-shock of one leaving combined with one being appointed. With scheduled appointments, those shocks are de-coupled, and a retiring justice isn’t “giving up a seat” to a president of an opposing (or congruent) political faction, which should reduce the incentive to delay retirement.

    Comment by M. Rad. — September 20, 2020 @ 2:38 pm

  6. I agree with you wholeheartedly, but I speculate made the same mistake as zillions of others ie misreading the risk, and expecting the coronation of Hillary.
    She expected to have her cake and eat it too, savouring the taste of power just that little bit longer whilst leaving a Democrat president to choose her successor.
    She must’ve had twice the hangover of the rest of the Dem faithful when Trump won in 2016.
    The tale and warning remain the same – hubris, and the sense of self-satisfying entitlement that push for the thrill of yet one more roll of the dice instead of being satisfied with a long a productive career.

    Comment by Bob B — September 21, 2020 @ 1:36 am

  7. @MJD By letting the Democrats play “politics above all else” by themselves, we got Obamacare, with its ridiculous maneuvering through the Senate to deliberately void the election of Scott Brown to explicitly kill it. We also got a weaponized IRS, FBI and CIA out of that type of thinking. When one side won’t play by the rules, the other side gets steamrolled if they don’t adjust.

    Comment by Christopher L Hunt — September 21, 2020 @ 1:37 am

  8. It seems even the Far Left are upset with Ginsberg for 1) dying during Trump’s presidency, and 2) not having retired in Obama’s presidency so he could appoint another liberal (read left) judge. Just can’t seem to ever satisfy these ‘people’. The world really is going insane.

    Comment by Alessandro — September 21, 2020 @ 7:30 pm

  9. Term limits – on federal judges – including the Supreme Court. Senate and Congress too, perhaps – Not sure how long though.

    Comment by howseth — September 22, 2020 @ 11:04 am

  10. You misspelled Justice Bader Ginsburg’s name.

    Comment by foo — September 23, 2020 @ 12:47 am

  11. This “dying wish” reminds me of piece of sh#t Bob Woodward saying CIA Bill Casey told him, ON HIS DEATHBED, that funds were diverted to the Contras.

    We have no media.

    Comment by Joe Walker — September 24, 2020 @ 4:23 pm

  12. Ginsburg’s perfidy goes all the way back to summer of 2016. She insulted, and denigrated Trump who was a private citizen, and campaigning for the presidential office at the time. Breaking a long standing canon of ethics, Ginsburg thought it was neccesary to give her political opinion on a Trump admin, and give unflattering and untrue statements against him and the campaign.

    She tried to play the game, thinking that the next admin of a woman prez would get to name the next woman justice, but sadly – she lost that game. So, tried to hang on until a possible Dem admin in Jan 2021, and lost that game too.

    Comment by doc — September 25, 2020 @ 5:43 pm

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