There’s an episode of “The West Wing” in which the White House tries to get the ailing chief justice of the United States, a liberal firebrand, to step down so that President Josiah Bartlet can appoint a younger replacement. Otherwise, as one staffer puts it, the chief might “be replaced by a paleo Republican.”
The episode comes to mind in light of the panicky voices on the right begging Justice Samuel Alito to step down so that President Donald Trump might have the opportunity to make one more Supreme Court appointment before January, when the Senate turns deep blue. Nothing at all new: Similar cries for early retirement have been heard in the past, when Democrats have seen red waves rising toward the political shores.
But for me as a constitutional romantic, the alarums and excursions incident upon such occasions are troubling. Pressuring a justice to resign so a sitting president might nominate a replacement seems to me every bit as big a threat to the separation of powers as court-packing, mandatory retirement ages and all the rest of the bundle of cheap theatrical gimcracks carried joyfully onto the stage of politics and opened with great fanfare as each generation seeks afresh to bring the court to heel.
Still, one must be honest enough to admit that it happens all the time. Think Barack Obama’s famous lunch with Justice Ruth Bader Ginsburg, where, so the story goes, she gently deflected his gentle hints that it was time to go, lest a Republican appoint her successor.
The Oval Office isn’t alone in getting up to this stuff. Although the data set is admittedly small, we can at least say that it’s far from unheard of for justices to try to time their retirements to allow presidents of their own parties to appoint their successors. Perhaps the best-known example is Earl Warren, who announced his retirement in 1968 in the hope that President Lyndon Baines Johnson would appoint his successor. Later on, Warren would admit that had he known how sharply the court would change, “They would have had to carry me out of here on a plank.”