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Discrimination or Duty: Justice Ginsburg And The Politics of Forced Retirement

Discrimination comes in many forms, but rarely with the strength as the recent public criticism of Justice Ginsburg’s stated desire to remain on the bench for as long as she is capable of serving.  By way of background, Democrats have taken to criticizing Justice Ginsburg (albeit subtly) for not retiring before the election in order to allow President Obama to appoint a Democratic successor in his first term.  According to these critics, Justice Ginsburg’s failure to resign increases the chances that Republicans will be capable of appointing a fellow Republican.  Since Justice Ginsburg is a liberal stalwart on a Court comprised of mostly conservatives and moderates, and given the precarious ideological balance, Justice Ginsburg’s successor is a particularly sensitive appointment, and a source of concern for Democrats.

As a preliminary observation, the dialogue is hardly timely.  President Obama just started his second term giving Justice Ginsburg ample time to retire if she desires and enough time for President Obama to appoint a Democratic successor.  But even if Justice Ginsburg decides to ride it out and serve beyond President Obama’s term, is it fair to hold her to a standard which requires her to chose her duty to her party over her obligation to the bench?  Say what you will about Justice Ginsburg’s decision to stick it out, it’s not because she’s losing her edge.  As a series of articles pointed out, at 80 years old, she is in better shape than most park slope parents in their 30’s and 40’s who can’t do 5 push ups, let alone 20 as Justice Ginsburg is capable of, and who are more inclined to rant about her obligation to retire (full disclosure: I am a park slope parent and I can do 10 push ups before collapsing in a breathless heap).

Those who argue that Justice Ginsburg has a duty to retire cast their arguments in terms of nondiscriminatory rhetoric that is not entirely unconvincing.  First, there is precedent for nudging judges towards retirement at all levels of the judiciary.  In fact, many states have mandatory retirement ages which are well before 80, and while these regulations may stem in part from sweeping ageist assumptions that sound decision making falters in old age, they are not without some basis in reality.  Firefighters and FBI agents, for instance, also have mandatory retirement requirements since their jobs require skills involving physical strength and critical reasoning which decline generally in those over the age of 65.  Second, Ginsburg critics also point to the fact that their pro-retirement sentiment is not motivated by age bias or age at all and instead by an animus towards…well…Justice Ginsburg for having the nerve to serve her term for as long as she is fit and able to do so.

But nobody would be pressuring Justice Ginsburg to abandon her position if she were not close to retirement age, let alone well past it, since the central justification for forced retirement is physical and mental decline occurring at or after 65.  So why should she be pressured to resign if the determining factor is age-related deterioration which Justice Ginsburg shows no signs of?  Why are we having the conversation – simply because there is precedent for it, even if it isn’t justified?  Isn’t that unfair to Justice Ginsburg?  And if there is a “greater good” argument to be made for Justice Ginsburg’s immediate retirement, isn’t the greater good also served by having Justice Ginsburg’s experience, knowledge and wisdom for another 2, 3, 4 or 5 years?  Public policy is starting to acknowledge this “greater good” argument against forced retirement for members of the judiciary, as noted by the Wall Street Journal in a recent article about how states are rethinking mandatory retirement for judges.

And what if we weren’t talking about Justice Ginsburg but instead Justice Souter, who is also aging gracefully, fit as a fiddle and in good health?    I find it very hard to believe that this debate would be the same if we were talking about a man in the same position.  The recent abrupt retirement of Pope Benedict is a perfect example of this.  Rather than being heralded for admitting that he was no longer capable of handling the demands of his position due to his age, he has been criticized for being a bit of a wimp and not toughing it out long enough to provide sorely needed stability and reform within the Catholic Church.  Yet his situation is very similar to Justice Ginsburg’s – his retirement similarly disappointed a political constituency of more conservative clerics fearing the ascension of a Jesuit reformer and occurred during a time of tumult and change within the Church.  Certainly, there were plenty of reasons for supporting his retirement, particularly since the Pope himself said he simply couldn’t carry out the duties of the office anymore, yet he was criticized for doing so.  Justice Ginsburg, on the other hand, has said that she is perfectly able to carry on in her position and has the evidence to prove it, yet she is criticized for not retiring.   In what reality does this make sense?

If you are unconvinced, ask yourself why you think she should retire.  Be honest.  It’s because she’s a diminutive woman and she looks frail, right?  If she were a man, six feet tall and could do one handed push ups like Jack Palance famously did at the academy awards, would you be as adamant about his need to retire?  Would you be griping this early, nearly three and a half years before any decisions become consequential for Democrats?  I propose the following test – ask yourself, “How many push ups can I do?  Can you I do more than my Justice Ginsburg?  She can do 25.”  If you respond with stunned silence like this reporter did after Justice Ginsburg’s confronted him for calling her frail, then I suggest you haven’t thought through your assumptions.

May we all grow old and wise like Justice Ginsburg, with a lovely family and a towering legacy of achievement.  Leave the little old lady alone or she just may knock some sense in to you.



Christopher Davis is an experienced employment litigator specializing in class actions, overtime wage recovery, discrimination, whistleblower retaliation, and Wall Street bonus disputes. Before entering private practice, Mr. Davis served as an Assistant District Attorney in the Manhattan District Attorney's Office where he prosecuted violent crimes as a member of the Sex Crimes Unit.

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