Former President Barack Obama Once Tried to Get Ruth Bader Ginsburg to Retire So he Could Appoint a Younger Justice

When Justice Ruth Bader Ginsburg joined President Barack Obama for lunch in his private dining room in July 2013, the White House sought to keep the event quiet — the meeting called for discretion.

Mr. Obama had asked his White House counsel, Kathryn Ruemmler, to set up the lunch so he could build a closer rapport with the justiceaccording to two people briefed on the conversation. Treading cautiously, he did not directly bring up the subject of retirement to Justice Ginsburg, at 80 the Supreme Court’s oldest member and a two-time cancer patient.

He did, however, raise the looming 2014 midterm elections and how Democrats might lose control of the Senate. Implicit in that conversation was the concern motivating his lunch invitation — the possibility that if the Senate flipped, he would lose a chance to appoint a younger, liberal judge who could hold on to the seat for decades.

But the effort did not work, just as an earlier attempt by Senator Patrick Leahy, the Vermont Democrat who was then Judiciary Committee chairman, had failed. Justice Ginsburg left Mr. Obama with the clear impression that she was committed to continuing her work on the court, according to those briefed.

In an interview a year later, Justice Ginsburg deflected questions about the purpose of the lunch. Pressed on what Mr. Obama might think about her potential retirement, she said only, “I think he would agree with me that it’s a question for my own good judgment.”

With Justice Ginsburg’s death last week, Democrats are in a major political battle, as Republicans race to fill her seat and cement the court’s conservative tilt.

Mr. Obama clearly felt compelled to try to avoid just such a scenario, but the art of maneuvering justices off the court is politically delicate and psychologically complicated. They have lifetime appointments and enjoy tremendous power and status, which can be difficult to give up.

Still, presidents throughout American history have strategized to influence the timing of justices’ exits to suit various White House priorities.

President Trump’s first White House counsel, Donald McGahn II, the primary architect of the administration’s success in reshaping the judiciary, helped ease the way for Justice Anthony Kennedy’s retirement in 2018, which allowed Mr. Trump and a Republican-controlled Senate to lock down his seat for another generation.

Mr. McGahn sought to make the justice comfortable with the process by which a successor would be chosen, according to people briefed on their conversations, by seeking his advice on potential picks for lower-court vacancies and recommending that Mr. Trump nominate one of his former clerks, Neil Gorsuch, to fill an earlier vacancy. (Brett Kavanaugh, whom Mr. McGahn recommended to fill Justice Kennedy’s seat, was also one of his clerks.)

Justices, however, often bristle at any impingement of politics or other pressures in their realm. Robert Bauer, who served as Mr. Obama’s White House counsel for part of his first term, said he recalled no discussions then of having Mr. Obama try to nudge Justice Ginsburg to step aside. Mr. Bauer said asking a judge — any judge — to retire was hypersensitive, recalling how in 2005 he wrote an opinion column calling for Congress to impose judicial term limits and require cameras in the courtroom, only to have Justice Sandra Day O’Connor blast his column in a speech on threats to judicial independence.

“The O’Connor episode reflects the sensitivity that justices can exhibit toward pressure from the outside about how the Court runs,” Mr. Bauer said, including showing “resistance to any questions about how long they serve.” He added: “White Houses are typically mindful of all this.”

Resistance aside, Democrats outside the White House also strategized about how to raise the topic of retirement with Justice Ginsburg. Several senior White House staff members say they heard word that Senator Leahy had gingerly approached the subject with her several years before the Obama lunch.

He was then the chairman of the Senate Judiciary Committee, which oversees Supreme Court nominations; he also had a warm relationship with Justice Ginsburg, a bond forged over their shared enjoyment of opera and visits to the Kennedy Center. Asked through a spokesman for comment, Mr. Leahy did not respond.

One of the former Obama administration staff members who heard discussion of the roundabout outreach by Mr. Leahy was Ron Nabors, who served in a series of White House policy and legislative affairs positions under Mr. Obama from 2009 to 2014. But Mr. Nabors said he recalled hearing that “it wasn’t clear that the message was entirely transmitted effectively, or that it was received in the manner it was delivered.”

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SOURCE: DNYUZ

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