Point of View

Kinnaird, Ginsburg get it exactly wrong on retirements

August 27, 2013 

Two senior women in public life recently made news with decisions about retirement. One, state Sen. Ellie Kinnaird, announced she is retiring midway through her term because she can’t be effective in a legislature dominated by conservatives. The other, Supreme Court Associate Justice Ruth Bader Ginsburg, announced that she is not retiring; she will continue leading the bloc of four justices who regularly dissent from the work of the court’s five conservatives.

Kinnaird explained her decision to a national audience on MSNBC’s Rachel Maddow Show. Ginsburg explained hers in a story published in the New York Times on Sunday.

Both have certainly earned easier lives. Kinnaird is 81 years old; Ginsburg is 80. Both have also earned our admiration and gratitude; they’ve tirelessly fought the good fight for the marginalized and the disempowered. I see both of them as role models for my daughters.

But on their retirement plans, I think they’re both getting it wrong.

Voters in Orange and Chatham counties (including me) elected Kinnaird to a two-year term. She’s leaving after one year because, as she explained on the Rachel Maddow Show, “I can’t accomplish anything in this session. ... I can’t do anything because I’m one of 17 Democrats out of 50.”

Some are celebrating this as an act of protest against the tea party extremism that has captured the General Assembly. It may be that, but it’s also something that Kinnaird doesn’t mention: a move that positions local Democratic Party officials to choose her replacement and, presumably, the incumbent in the next election. If she had made her resignation effective at the Senate session’s end, we voters would be the ones fully in charge of who represents us. By quitting halfway through, she goes a long way toward turning an elective office into an appointed one.

Justice Ginsburg’s situation is different. Her position is, by definition, appointive. The question is which president will get to do the appointing.

Ginsburg insists that she retains her intellectual powers and her ability to handle the court’s workload. (As an avid court-watcher, I can attest that this is true.) She insisted to the New York Times that the identity of the president who would name her replacement doesn’t factor into her thinking about retirement. In practical terms, this means that she’ll retire when she’s good and ready, even if that means that her replacement is named by President Chris Christie or President Rand Paul rather than President Barack Obama.

Kinnaird’s job was to represent the people of Orange and Chatham counties. She would have done that job better by staying in office a little longer. Ginsburg’s job is to protect and enforce the enduring values in the Constitution as she understands them. She’d do that job better by retiring now.

Eric L. Muller is the Dan K. Moore Distinguished Professor at the University of North Carolina School of Law.

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