So, how many Supreme Court retirements will there be this year?

posted at 5:21 pm on February 14, 2014 by Allahpundit

Lefty Michael Cohen has his fingers crossed for two.

If Ginsburg and Breyer wait to retire, it will only serve to maximize the possibility that a Republican president will choose their successor and in the process undo much of what they’ve worked for their entire careers.

To be sure, I’m not the first person to make this argument and Ginsburg has publicly pushed back on talk of her leaving. What’s changed in recent weeks, however, are new poll numbers that suggest Democrats are at very real risk of losing their majority in the Senate. While such an outcome next fall would be demoralizing for Democrats, it wouldn’t have much of a policy impact. No matter who controls the Senate, House Republicans are hardly leaping at the opportunity to work with President Obama. It would, however, make it much harder for Democrats to fill the judiciary with progressive judges…

Considering that Harry Reid was forced to employ the nuclear option against the filibuster to get Obama’s lower court judges past Senate GOP obstruction tactics, does anyone really doubt that Republicans would block Obama’s supreme court nominees? Unlike today where Republicans would have to take the unprecedented step of using the filibuster to stop a potential nominee, a GOP-controlled Senate could simply vote one down with a 51-vote majority. Democrats would have little recourse to stop them.

Liberals have bitter memories of watching the Court’s lefty lions wait too long and then end up being replaced by Republican appointees. William Brennan tried to outlast 12 years of Republican presidents in the 1980s but finally stepped down in 1990. His replacement, David Souter, worked out okay for the left. Thurgood Marshall followed a year later. His replacement, Clarence Thomas, didn’t.

As such, ever since election day 2012, they’ve wanted their elder statesmen on the Court to make way sooner rather than later. Because of two developments over the past six months, they now need them out much sooner. Thanks to ObamaCare, the GOP’s odds of taking back the Senate have risen, and thanks to Harry Reid, Democrats no longer have to worry about the current Republican minority filibustering a cloture vote on a SCOTUS nominee. (Technically, although it’s been stripped away for lower court appointments, the right to filibuster remains in effect for Supreme Court confirmations. Reid won’t wait five minutes to nuke that part of it too, though, once a SCOTUS vacancy opens up.) If you want to get a young, radically liberal judge rubber-stamped by 51 Democrats, now is the time.

But based on what Ginsburg told Reuters last July, she’s not going anywhere:

Brushing off political calculations, she said, “It really has to be, ‘Am I equipped to do the job?’ … I was so pleased that this year I couldn’t see that I was slipping in any respect.” She said she remains energized by her work as the senior liberal, a position she has held since 2010 when Justice John Paul Stevens retired, and calls being a justice “the best job in the world for a lawyer.”

She has previously said she wanted her tenure to at least match the nearly 23 years of Justice Louis Brandeis, which would get her to April 2016, and said she had a new “model” in Justice Stevens, who retired at age 90 after nearly 35 years on the bench.

Reinforcing the message that she might not leave before her health requires it, she mused of another former colleague, “I wonder if Sandra regrets stepping down when she did?”

Three points here in response to Cohen. One: Although Democrats have a freer hand now to approve a new liberal appointee than they’ve had in years, midterm politics will provide some restraint on Obama, needless to say. Landrieu, Pryor, and the rest of the red-state gang already have a heavy burden to shoulder; having the White House try to ram through a radical progressive will make it heavier. If Ginsburg has a change of heart and wants to make it easy on team Democrat, she’ll aim for the lame-duck session.

Two: Obama can and will still get a SCOTUS nominee past a Republican-controlled Senate, even if/when the new majority leader reinstates the filibuster rules to bring the cloture threshold back to 60. Congress won’t allow the Supreme Court to operate for years with eight justices. Some sort of deal will be struck, possibly involving a new Senate “gang” (groan), to fill the vacancy. The trade-off for O will be that he’ll have to appoint someone who’s nominally further towards the center than he’d like, but that’s okay. When was the last time a Democratic justice broke with the pack on any major decision? They’re bench is entirely liberal. Some of them are simply more scrupulous about hiding it than others.

Three: Cohen’s overselling the possibility of a Republican president appointing someone in 2017 and having him/her confirmed by a Republican Senate. I know I’ve linked it before but here again is Sean Trende’s odds of the Democrats retaking (or holding) the Senate in 2016. They’re sky high, just because there are so many vulnerable GOP incumbents who happen to be up that year. Factor in the certainty of higher Democratic turnout in a presidential election year and everything’s in their favor. Odds are that President Jeb Bush or Ted Cruz would have to get his first nominee past a majority from the other party — and Republicans know it, which is yet another incentive for them to forge some sort of “gang” for 2015-16. If they’re willing to approve a centrist-y Obama nominee over the last two years of his term, Democratic “gang” members will need to approve a centrist-y nominee from the next Republican president in 2017-18.


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Can Obama appoint his pen and his phone to the bench?

gwelf on February 14, 2014 at 5:25 PM

I’m hoping none!

Here’s a question: since Obama is now golfing full time, if Ruth Ginsburg did retire, would the President care?

MTF on February 14, 2014 at 5:25 PM

Congress won’t allow the Supreme Court to operate for years with eight justices.

Why not? They’ve let lower courts’ seats lay fallow for years…

JohnGalt23 on February 14, 2014 at 5:27 PM

None will retire.

They could go otherwise.

Schadenfreude on February 14, 2014 at 5:27 PM

If they’re willing to approve a centrist-y Obama nominee over the last two years of his term, Democratic “gang” members will need to approve a centrist-y nominee from the next Republican president in 2017-18.

Since when do Dems feel the need to reciprocate? I recall the Republicans had a 60-vote threshhold for cloture . . . Dems didn’t reciprocate that, did they?

SoRight on February 14, 2014 at 5:29 PM

The real question, is IF there are any SCOTUS retirements, how many of those will the (R)’s CAVE on this year?

Left_is_Wrong on February 14, 2014 at 5:31 PM

OT – Banana Republic

Schadenfreude on February 14, 2014 at 5:34 PM

Democrats are at very real risk of losing their majority in the Senate.

Of course the freaking liberals never ask WHY they’re going to lose the Senate.

Could it be because of all their WONDERFUL policies?

GarandFan on February 14, 2014 at 5:35 PM

If they’re willing to approve a centrist-y Obama nominee over the last two years of his term, Democratic “gang” members will need to approve a centrist-y nominee from the next Republican president in 2017-18.

Because if there is one thing Democrats are known for it is holding up their end of a bargain!

Valkyriepundit on February 14, 2014 at 5:37 PM

Gotta do this while McConnell is still in there and can whip the GOP to support his nominees, amiright?

besser tot als rot on February 14, 2014 at 5:37 PM

How’s the health of each justice? There are different forms of “retirement” and a widow maker heart attack is one of them.

Ruckus_Tom on February 14, 2014 at 5:41 PM

If Ginsburg and Breyer wait to retire, it will only serve to maximize the possibility that a Republican president will choose their successor and in the process undo much of what they’ve worked for their entire careers.

Their entire careers should have been working toward upholding the United States Constitution, not playing the role of some Democrat Party hack.

They’re bench is entirely liberal.

**GROAN**

joekenha on February 14, 2014 at 5:43 PM

Best analysis on the internets.

aquaviva on February 14, 2014 at 5:46 PM

It certainly seems these people are seeing the country moving away from them, does it not? They are despairing.

ojfltx on February 14, 2014 at 5:49 PM

So, how many Supreme Court retirements will there be this year?
===================================================================

NightMarish if it lands on Hopeys watch!!

canopfor on February 14, 2014 at 5:58 PM

Can Obama appoint his pen and his phone to the bench?

gwelf on February 14, 2014 at 5:25 PM

Ruth better be watching out for drones.

onomo on February 14, 2014 at 6:01 PM

They want to lock it all in.

Expect a sudden return of respect for the rights of the minority if the GOP takes the Senate, complete with handwringing NYT editorials.

Art Vandelay on February 14, 2014 at 6:03 PM

Hmmmmm, ………………..

Stop Telling Ruth Bader Ginsburg to Retire

It’s counterproductive.
Dec. 18 2013 4:51 PM
*********************

If you are a liberal who cares about the Supreme Court,

you may be feeling that Justice Ruth Bader Ginsburg just slipped coal into your Christmas stocking. (If you don’t have a stocking, me neither, but ’tis the season.)

At an event in Virginia on Tuesday, answering a question from former Solicitor General Ted Olson about whether Supreme Court justices should retire when the party that appointed them controls the presidency and will get to replace them, Ginsburg said,

“I think one should stay as long as she can do the job.”

This builds on her remark to Adam Liptak of the New York Times in August, when she made it clear that she was not timing her departure based on Barack Obama’s remaining years in office.

She said then,

“There will be a president after this one, and I’m hopeful that that president will be a fine president.”
(More….)
===============

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/12/ruth_bader_ginsburg_s_retirement_stop_telling_the_supreme_court_justice.html

canopfor on February 14, 2014 at 6:03 PM

Republicans need to develop a “pre-cave” posture.

Cave-in now, preemptively, as a signal that they will approve whoever Dear Leader nominates.

In exchange for this they would extract from Reid a verbal indication (nod, wink, yawn, gesture) that he would honor his word for a GOP POTUS in 2017.

Basically, keep doing what they’re doing now.

aquaviva on February 14, 2014 at 6:09 PM

“They’re bench”. First time I have seen Allah slip up.

Salamander on February 14, 2014 at 6:11 PM

If they’re willing to approve a centrist-y Obama nominee over the last two years of his term, Democratic “gang” members will need to approve a centrist-y nominee from the next Republican president in 2017-18.

I don’t think the Democrats abide by any quid-pro-quo.

Stoic Patriot on February 14, 2014 at 6:12 PM

How many of them have NSA files the president has seen?

CurtZHP on February 14, 2014 at 6:14 PM

Republicans need to develop a “pre-cave” posture.

Cave-in now, preemptively, as a signal that they will approve whoever Dear Leader nominates.

In exchange for this they would extract from Reid a verbal indication (nod, wink, yawn, gesture) that he would honor his word for a GOP POTUS in 2017.

Basically, keep doing what they’re doing now.

aquaviva on February 14, 2014 at 6:09 PM

The GOP is already well versed in the “pre-cave” posture. It’s called bend over and grab their ankles so Reid and Obama can take turns “ridin’ dirty”

They even have special pistol-grip socks they wear for just those occasions.

Left_is_Wrong on February 14, 2014 at 6:14 PM

Scalia, Ginsburg discuss retirement timing
October 7, 2013, 2:48 PM
*************************

Four of the nine U.S. Supreme Court justices are age 75 or over (and all nine are over 50, making them eligible for AARP membership, as the advocacy group points out). So as the court convened today for “First Monday,” the opening day of its annual term, there was the usual round of speculation about whether this session might be the last for any of the nation’s top jurists. Hence the particular interest in recently published comments about retirement by the two oldest justices, Antonin Scalia (age 77) and Ruth Bader Ginsburg (80).

When asked when they’d retire, each justice essentially gave the same answer: I’ll know when it’s time, and it’s not time yet. The differences in their answers beyond that point pretty much reflect their differing public personas. Scalia offered his take on retirement as part of a long and interesting interview with Jennifer Senior of New York magazine. Asked about what might be a “telltale sign” that it was time to leave the bench, he offered a typically blunt, who-cares-what-other-people-think rumination.

“One will be that I won’t enjoy it as much as I do … I was worried lately about the fact that the job seems easier. That I really don’t have to put in the excessively long hours that I used to. I still work hard. But it does seem easier than it used to. And that worried me. You know: Maybe I’m getting lazy. You know, I’m not doing it as thoroughly, or whatever.”
(More….)
=============

http://blogs.marketwatch.com/encore/2013/10/07/scalia-ginsburg-discuss-retirement-timing/

canopfor on February 14, 2014 at 6:16 PM

If they’re willing to approve a centrist-y Obama nominee over the last two years of his term, Democratic “gang” members will need to approve a centrist-y nominee from the next Republican president in 2017-18.

So there’s the future of the SCOTUS… centrist-y, squishy, compromise-y. The odds of a new justice on the progressive/lib side of centrist-y are pretty good. The odds of another Scalia or Thomas? ‘Nuff said.

Marcola on February 14, 2014 at 6:17 PM

If they’re willing to approve a centrist-y Obama nominee over the last two years of his term, Democratic “gang” members will need to approve a centrist-y nominee from the next Republican president in 2017-18.

You’re kidding, right? Right?

The Dems will caterwaul to get the filibuster reinstated as soon as they’re in the minority again, and then they’ll use that power to stop anyone more conservative than Souter that a R POTUS might nominate.

Republicans need to learn that the only time they should ever be reaching across the aisle is when they are wearing brass knuckles. It’s what the Dems have been doing for decades to the Reps.

sumpnz on February 14, 2014 at 6:22 PM

I wouldn’t be surprised to hear of Justice Ginsburg meeting with an unfortunate accident, like, oh, I don’t know, a fall down a flight of stairs.

I can hear Nancy now, “poor dear, she was rather frail and feeble dontcha know”.

Flora Duh on February 14, 2014 at 3:01 PM

Flora Duh on February 14, 2014 at 6:26 PM

no worries, mccain, flake, collins and murkowski will help the dems

cmsinaz on February 14, 2014 at 6:27 PM

Congress won’t allow the Supreme Court to operate for years with eight justices.

Why not? They’ve let lower courts’ seats lay fallow for years…

JohnGalt23 on February 14, 2014 at 5:27 PM

Yes, it would be a great idea actually. In fact if two liberals resign 7 would be fine as well.

whbates on February 14, 2014 at 6:28 PM

Republicans need to learn that the only time they should ever be reaching across the aisle is when they are wearing brass knuckles. It’s what the Dems have been doing for decades to the Reps.

sumpnz on February 14, 2014 at 6:22 PM

THIS right here but alas, we have hatch, mccain,flake, collins and murkowski…they would rather be Mr. Nice Guy

cmsinaz on February 14, 2014 at 6:29 PM

Anybody who thinks for a minute that Obama wont “persuade” Justice Ginsburg from retiring this year hasn’t been paying attention to the news since 2007.

Sacramento on February 14, 2014 at 6:31 PM

“It would, however, make it much harder for Democrats to fill the judiciary with progressive judges…”

Progressive judges. I thought their job was to protect and defend Constitutional law, not be “progressive” (HA!)?

RobertMN on February 14, 2014 at 6:32 PM

can Obama just appoint himself to SCOTUS at the end of his term?

He was, after all, a brilliant Constitutional scholar

Never mind the 90% fail rate his administration has had with SCOTUS legal challenges…

thurman on February 14, 2014 at 6:40 PM

thurman on February 14, 2014 at 6:40 PM

ding ding ding….

cmsinaz on February 14, 2014 at 6:41 PM

Term limits for SCOTUS. Now. Please.

dnonnema on February 14, 2014 at 6:54 PM

First of all, the closest thing to hope we have is Obama never gets to pick another Supreme Court nominee. I’ll bet any amount of money, the next nominee is already in the wings and his/her record is as blank as this block was, before I started typing here. They are liberal, they believe in a fluid constitution, and they believe their mission is to move the progressive agenda forward.

We have to survive for 3 years with this group to have any sense that the court will not continue to be this liberal for years to come. After what John Roberts did with Obamacare, there are few “conservatives” I believe would protect the country. Obama has already shown he will pick the most liberal candidate he can get and, even with a Republican Senate, Obama is stubborn enough that he’ll play politics with his candidate until he’s approved.

You can’t trust anyone, who is so willing to lie, to appoint judges. Judges are appointed for life and their ability to subvert the constitution is immense. Every judge that Obama nominates will be someone who, for years, will be subverting our society and dragging us backwards. They will be a heavy load to overcome.

bflat879 on February 14, 2014 at 6:55 PM

Recess Appointment!

If Ginsburg and Breyer wait to retire, it will only serve to maximize the possibility that a Republican president will choose their successor and in the process undo much of what they’ve worked for their entire careers.

Seriously, I suspect that the ego of these two is such that they want to stay in place as long as their state of health will allow, as terrible as it is in Ruth’s case. They see another couple of years of ‘their legacy’ as having more value than some vague liberal continuity.

slickwillie2001 on February 14, 2014 at 7:58 PM

Shame the GOP doesn’t have the *ahem!* testicular fortitude to bork Dem SCOTUS nominees like the Dems did with Judge Robert Bork (may he RIP) and tried to do with Justice Clarence Thomas.

Sometimes, when it comes to playing dirty, one has to remove the gloves.

Newtie and the Beauty on February 14, 2014 at 8:02 PM

I hate to throw cold water on anyone’s hopes, but the Grinning Hag is another leftist radical with a huge purse, a slavish press corps and an immense fraud machine made fat with billions of our “stimulus” dollars. If Holder can suppress voter ID laws, we’ll not see anything but leftist stooges on the bench for… forever.

DaNang67 on February 14, 2014 at 8:05 PM

The “…odds of the Democrats retaking (or holding) the Senate in 2016… [are]sky high, just because there are so many vulnerable GOP incumbents who happen to be up that year.”

I’ve heard that argument at Hot Air before and I’m not sure I agree. Yes, there are more Republican Senators up for reelection in 2016 than Democrats, but exactly where are they vulnerable?

Here is the GOP list:

Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Missouri, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Wisconsin.

Yes, Mark Kirk in Illinois is vulnerable, and perhaps Pat Toomey in Pennsylvania. But who else?

Here is the Dem list for 2016:

California, Colorado, Connecticut, Maryland, New York, Oregon, Vermont, Washington

Other than Colorado, they seem safe for the Dems. But Hillary Rodham is not going to have coattails in Alaska or even Arkansas, let alone Louisiana, Utah, or South Dakota.

Colony14 on February 14, 2014 at 8:13 PM

Here is the GOP list:

Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Missouri, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Wisconsin.

All the bolded ones are vulnerable. Some more so than others. But let’s not kid ourselves that those states are locks.

sumpnz on February 14, 2014 at 8:34 PM

Colony14 on February 14, 2014 at 8:13 PM

Exactly!

We had the same sort of edge in the Senate going into 2012, most of the seats up were Democrats and many were vulnerable freshman like Tester in Montana, for example, and we couldn’t pull it off.

There is no reason to assume that our “vulnerable” red state Senators are really in any danger. Unless the Democrats nominate another black, the minority and youth turnout won’t match ’08 and ’12 by a long shot.

Adjoran on February 14, 2014 at 8:42 PM

Woohoo!!! Let’s ditch McConnell!!!!

WryTrvllr on February 14, 2014 at 8:52 PM

I say that if Ginsburg and Breyer retire during the term of O’AboutMe, so what!?

Where on this the planet is he going to find a more off the wall LeftTard than Ginsburg? Remember, she is the former ACLU attorney who has argued that fourteen year old girls should be the age of consent. The list of her off the wall opinions is legend.

All O’AboutMe can do is try to equal the nut jobs that are already there.

WestTexasBirdDog on February 14, 2014 at 9:02 PM

None, unless someone is blackmailed to resign, (is that racist?) or dies of natural causes or is helped along.

LegendHasIt on February 14, 2014 at 9:15 PM

WestTexasBirdDog on February 14, 2014 at 9:02 PM

IMHO, you can blame FDR and his hissy fit for the lib justices we’ve been trying so hard to replace on SCOTUS. FDR appointed eight SCOTUS justices, the second highest number of appointed justices, topped only by George Washington. Only by getting rid of justices who mistakenly believe the Constitution is a “living, breathing document” can we stand a chance of getting SCOTUS BACK to judging cases based on the Constitution, rather than previously wrongly interpreted case law or some sort of political agenda.

Newtie and the Beauty on February 14, 2014 at 9:23 PM

WestTexasBirdDog on February 14, 2014 at 9:02 PM

right. a 30 year old version of ginsburg would be just peachy

WryTrvllr on February 14, 2014 at 9:23 PM

Ruth Buzzi Ginsburg sleeps through most of the court sessions, so it could be that she really is dead and the evil Scalia wheels her out in a handcart and props her up at the bench. Ssshhhh!

slickwillie2001 on February 14, 2014 at 9:23 PM

slickwillie2001 on February 14, 2014 at 9:23 PM

With all due respect, Ruthie is an active participant during the oral arguements. The silent one is Justice Clarence Thomas, but Thomas is no slouch when it comes time to draft opinions.

Newtie and the Beauty on February 14, 2014 at 9:28 PM

“…midterm politics will provide some restraint on Obama”
.
That’s some willfully and painfully stupid naivete, there.

Dr. Carlo Lombardi on February 14, 2014 at 9:37 PM

It might behoove the justices to watch their backs for the next couple of years.

BelleStarre on February 15, 2014 at 12:42 AM

Ginsburg makes it difficult to have a
Christian attitude whenever her name comes up.

Cleombrotus on February 15, 2014 at 7:48 AM