Why didn't Ginsburg and/or Breyer retire sooner so that Obama could appoint their replacements?

People are realizing today that Trump’s opportunity to replace Kennedy is the product of multiple Democratic miscalculations, starting with Harry Reid nuking the filibuster for lower-court nominees five years ago and continuing through Chuck Schumer’s decision last year to filibuster Gorsuch with no hope of success. Both errors were egged on by the Democratic base. Liberals were indignant at GOP obstruction of Obama’s nominees in 2013 and furious at Trump and Neil Gorsuch for snatching away Merrick Garland’s opportunity to flip Scalia’s seat. You can understand why Reid and Schumer caved. But in the end, that’s a failure of leadership. It’s up to them to see the big picture strategically and explain to the left when it’s acting self-destructively because it’s spoiling for a fight.

But then, neither party’s leadership is very good at that, as we might recall from the 2011 debt-ceiling and 2013 shutdown fiascos.

Anyway. Schumer’s miscalculation is getting all the attention this afternoon. But there’s another miscalculation with even more momentous consequences potentially that should be noted, isn’t there?

The Notorious RBG’s legacy now depends upon her good health for the next two years at a minimum and potentially for the next six years. She could have folded during the Obama era and given O the chance to let Merrick Garland fill her seat instead. (Irony: Because Garland is a bit — a bit — more centrist than Ginsburg herself, liberals probably would have hated the pick in that case.) Stephen Breyer, who’ll turn 80 in less than two months, could have done the same thing. Now there’s an outside chance that Trump will appoint not only Kennedy’s successor but their successors as well, producing a 7-2 Republican stranglehold on the Court that will ensure a right-wing majority for another generation. Why didn’t Ginsburg and Breyer quit when they had the chance to have liberals replace them?

Right, right: “They thought Hillary would win!” True. Nearly everyone did. They figured they could retire this year or next and President Clinton would appoint Kamala Harris or whoever to their seat. No doubt that factored into RBG’s and Breyer’s reasoning, but it’s too pat. Remember, Trump’s viability as a serious contender was in doubt allllllll the way up to the New Hampshire primary in February 2016. He led the polls throughout 2015 but plenty of pundits, me included, expected his support would fade as voters “got serious” about the election. The Iowa caucuses seemed to bear that out. After all the Trump hype before the primaries began, it was Cruz who won the first state on the calendar. Which raises the question: Why would Ginsburg and Breyer have assumed in 2015 that Hillary would win the election in 2016 when Trump — a supposed pushover in the general election — was still highly unlikely to be the nominee? The “fundamentals” of the race in 2015 favored Republican victory since Democrats had already held the White House for two terms. There was every reason to believe an “electable” Republican like Marco Rubio would win the primaries and go on to win the presidency.

All of which is to say, I think we’re overrating how much “They thought Hillary would win!” influenced Ginsburg and Breyer. That was part of their reasoning, sure, but probably they just enjoyed their job, felt up to doing it for the foreseeable future, and maybe worried a little that even a Democratic-appointed replacement wouldn’t vote the way they would have in key cases if they stepped aside. It may have been vanity, that is, that kept them on. Especially in Ginsburg’s case, given the folk-hero status she’s acquired among the left.

Of course there’s no telling what McConnell would have done if RBG had chosen to retire in late 2015. His rationale for blocking Garland’s confirmation was that a vacancy arising in a presidential election year should be decided by the voters. What about a vacancy arising *just before* a presidential election year? What about the summer of the year before? At some point even Cocaine Mitch would have relented and agreed to hold hearings on a Democratic nominee, but there’s a nonzero chance that had Ginsburg retired in the second half of 2015, McConnell would have held that seat open too for eventual President Trump to fill. Mitch the Knife plays for keeps on court nominations, especially Supreme Court ones.

Anyway, we are where we are. The conventional wisdom on political Twitter among tapped-in righties seems to have congealed very quickly around Brett Kavanaugh and Amy Coney Barrett as the two likeliest successors to Kennedy. Ramesh Ponnuru makes the case for the latter:

Her educational history — she went to Rhodes College and Notre Dame Law School — would add a little welcome diversity to a Supreme Court full of Yale and Harvard alumni. It’s not the most important consideration, but a little less insularity would be a good thing.

Barrett has also recently been through Senate confirmation to a federal appeals court. She won the support of all the Republicans and three Democrats (Joe Donnelly of Indiana, Tim Kaine of Virginia, and Joe Manchin of West Virginia). Some of those senators might rationalize a vote against her for the Supreme Court on the ground that her decisions on the appeals court have disappointed them, or that the high court has more power than the one they voted to put her on. But they will be hard-pressed to argue that she is an extremist given their own recent support…

The main reason I favor Barrett, though, is the obvious one: She’s a woman. It may be that in an ideal world, the sex of a Supreme Court nominee would not matter. But opposing a woman will probably be more awkward for senators than opposing a man would be. Also, it cannot be good for conservatism that all three women now on the court are liberals. If Roe v. Wade is ever overturned — as I certainly hope it will be, as it is an unjust decision with no plausible basis in the Constitution — it would be better if it were not done by only male justices, with every female justice in dissent.

Yes, it would, but let’s have a reality check here. Asking a conservative woman to provide the swing vote to overturn Roe v. Wade is asking an enormous — enormous — amount. If a man were appointed and provided the fifth vote, he’d be vilified by the left, of course, but so would the other four men in the majority. And above all so would Trump, who’d be attacked for putting Gorsuch and the new justice on the Court. Liberal rage would be over-the-moon histrionic but it would be spread around.

But if a woman provided the fifth vote, all of that rage would be focused on her. She’d experience a degree of vilification that few people in modern American history have faced. The left would view her vote not just as a constitutional heresy but as the supreme act of gender treason. Barrett would need 24/7 security for the rest of her life and her children would need it for the next several years at a minimum. And all of this is foreseeable, including, I’m sure, to Barrett herself. That doesn’t mean she wouldn’t grit her teeth and vote to strike down Roe anyway, believing it to be the proper constitutional outcome. But the hard fact of political reality is that asking a woman justice to do this is asking something an order of magnitude more difficult than asking a man to. If we’re calculating on how to jettison Roe, that has to be part of the calculus. And if you don’t like it, you shouldn’t. Blame the abortion-fanatic left, which would react to a woman-imposed edict barring them from killing children in the womb with homicidal rage.

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David Strom 1:31 PM on September 30, 2022