Right-Leaning Judges Should Learn From RBG, Ikuta and Retire Now

Federal judges are allegedly separated from politics, yet many of them still spend a great deal of time reflecting on their legacies as public officials.

When Fox News’ Chris Wallace asked US Supreme Court Justice Antonin Scalia in a 2012 interview if he thought about retirement or a successor, Scalia replied: “Of course, I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25 years, 26 years, sure. I mean, I shouldn’t have to tell you that, unless you think I’m a fool.”

Scalia was no fool, but the number of retirement-eligible judges who refuse to give up their full-time jobs wearing the robe is cause for concern about the future of the federal courts.

Today, there are 24 Republican-appointed circuit judges eligible to retire. Of those 24, one has been eligible to retire since 1994 and 18 were eligible to retire during President Donald Trump’s first term. With the new year upon us—and midterm elections approaching—that means only one more year of certain Republican control of the US Senate. The time is right for those retirement-eligible judges to consider their judicial legacies.

As they do, judges should take a look at the legacies of Justice Ruth Bader Ginsburg and Judge Sandra Segal Ikuta of the US Court of Appeals for the Ninth Circuit.

Justice Ginsburg’s legacy as a legal trailblazer including her numerous victories for the equal rights of women in the Supreme Court as a lawyer, and the enduring impact of her expansive view of the 14th Amendment as a judge, will forever be tainted by the fact that she refused to retire under President Barack Obama.

Her retirement plan, according to her daughter, was to wait for “the first female president to name her successor.” Of course, Justice Ginsberg believed Hillary Clinton would win the 2016 election, but Trump foiled her plans. After a long battle with cancer, she died on Sept. 18, 2020, only a couple of months before Joe Biden was certified as president.

Trump moved quickly to fill her seat with Justice Amy Coney Barrett, whose appointment formed a super-majority of Republican-appointed justices and marshaled in a wave of originalism, resulting in significant movement within the law. The Supreme Court ended affirmative action in higher education, kneecapped the administrative state, and eliminated the federal constitutional right to abortion, just to name a few.

Ironically, it could be fairly argued that the most consequential dimension of Justice Ginsburg’s judicial service was her failure to retire during Obama’s tenure, as no single event—not even former Senate Republican Leader Mitch McConnell’s decision to block Obama’s nomination of DC Circuit Judge Merrick Garland to Justice Scalia’s seat, thereby preserving a Republican-appointed majority—is more directly responsible for the Trump administration’s unparalleled recent success at the Supreme Court.

In contrast, consider the legacy of Judge Ikuta, who died in December. For most of her 20 years on the Ninth Circuit since her nomination by President George W. Bush, it was a reliably liberal court. That changed after Trump appointed nine new judges during his first term. Unfortunately, Judge Ikuta was diagnosed with pancreatic cancer during Biden’s term and could have taken a reduced caseload or retired outright.

After Trump won and began his second term, Judge Ikuta submitted her retirement letter. Trump nominated Eric Tung—a protégé of Justice Scalia and Justice Neil Gorsuch—to fill her seat.

While still in its early days, Judge Ikuta’s judicial legacy will endure not only through her comprehensive body of work and through the dozens of law clerks she mentored, but because she didn’t permit it to be undermined by her successor.

The way Judge Ikuta’s judicial legacy will live on is presumably what Justice Ginsburg would have wanted.

The Codes of Conduct for US Judges are clear that a judge can retire regardless of who sits in the Oval Office. But as judges consider their own judicial legacies, they would be short-sighted to end the assessment with their judicial work and a few anecdotes. Justice Scalia implicitly acknowledged that it is long-remembered when a judge’s successor devotes their career to undermining their predecessor’s life’s work.

In an era where judicial appointments are already openly ideological, refusing to acknowledge political reality doesn’t preserve neutrality—it merely cedes influence.

With 53 Republican votes in the Senate—including emerging leaders such as Eric Schmitt (R-Mo.) and Dave McCormick (R-Pa.) and senior statesmen such as McConnell and Chuck Grassley (R-Iowa)—now is the moment for the remaining judges appointed under Presidents Ronald Reagan and George H.W. Bush to cement their judicial legacies, guaranteeing a successor with conservative bona fides.

Or they can roll the dice. Time is undefeated, so this choice may be the most consequential decision a judge ever writes.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Robert Luther III is an associate professor of law at the Antonin Scalia Law School at George Mason University and the founder of Constitutional Solutions PLLC, which provides counsel to aspiring judicial candidates. He served as associate counsel to the president in the White House Counsel’s Office from 2017 to 2018, where he co-managed the judicial selection process.

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