The Subtleness of a Court Retirement

WASHINGTON -- The law operates with bright-line rules but also with balancing tests and concerns over image. The appearance of impropriety. The appearance of corruption. And so it is with lawyers, starting at the top.

Competing concerns must be weighed -- personal health, institutional interests, legacy, longevity. And so, too, must appearances -- of undue politicization of an entity supposedly above politics, of gaming the system for ideological ends.

I am referring, of course, to Justice Ruth Bader Ginsburg, who turned 81 last month, and a debate about whether she should retire which seems fated to continue until she actually does. The flames of Ginsburg retirement talk were most recently fanned by her once-colleague, retired Justice John Paul Stevens, who told ABC's George Stephanopoulos that it was acceptable to take politics into account in deciding when to step down.

"I think so," Stevens said. "I think certainly natural it's an appropriate thing to think about your successor, not only in this job," citing the recent memoir by former Defense Secretary Bob Gates. "He thought a lot about his successor ... too. (If) you're interested in the job and in the kind of work that's done, you have to have an interest in who's going to fill your shoes."

But Stevens hastened to note that politics did not enter into his own decision to retire in 2010.

"Well, my decision was not made for any political reason whatsoever. It was my concern about my own health," said Stevens, who at 94 is not only reading the Gates book but has just published his own rewriting the Constitution. If he is fading, we should all be so lucky.

Yet Stevens' coyness is unsurprising. What retired justice has ever proclaimed: I gamed the system and quit in time for the president on my team to name a successor!

Supreme Court retirements are, and should be, a more subtle enterprise, which is why the hue and cry for Ginsburg -- and, next at bat, Justice Stephen Breyer -- to make way for new (liberal) blood is so counterproductive.

Of course, it's idiotic to imagine that any justice is insensitive to the identity of his or her successor. If, as Stevens observed, you care about your work, and every justice does, you have to care about who will pick it up -- or dismantle it -- when you are gone.

And while a new defense secretary matters, a new justice really matters. For one, defense secretaries come and go; justices stick around long after the president who appointed them.

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