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.