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Such talk is always subtle because a presidential administration never wants to be perceived to engage in politics over the judiciary given the bedrock American principle that separates the branches of government.
Before Obama’s 2012 reelection, Harvard University law professor Randall Kennedy stirred public debate with an April 2011 essay for the New Republic urging Ginsburg and Justice Stephen Breyer, now 74 and also appointed by Clinton, to retire to ensure a possible Republican president not fill their seats.
On Wednesday, Kennedy repeated his sentiment, telling Reuters he still thinks that “the responsible thing” would be for Ginsburg to step down. “It seems to me that a justice should take into account the politics surrounding confirmation and not allow (an) opportunity to fall to a Republican,” said Kennedy, who was a law clerk to Justice Thurgood Marshall.
University of North Carolina law professor Michael Gerhardt, who has studied judicial nominations, said Wednesday he expected to see “opinion leaders trying to shape attitudes” among the public as well as “efforts through back channels to increase the pressure for her to step down.”
In her interview, Ginsburg referred to past liberal commentary and predicted, “That’s going to start up again.”
Brushing off political calculations, she said, “It really has to be, ‘Am I equipped to do the job?’ … I was so pleased that this year I couldn’t see that I was slipping in any respect.” She said she remains energized by her work as the senior liberal, a position she has held since 2010 when Justice John Paul Stevens retired, and calls being a justice “the best job in the world for a lawyer.”
She has previously said she wanted her tenure to at least match the nearly 23 years of Justice Louis Brandeis, which would get her to April 2016, and said she had a new “model” in Justice Stevens, who retired at age 90 after nearly 35 years on the bench.