The argument for Ginsburg’s early retirement is often predicated on her advanced age (she is 80) and her bouts with pancreatic and colon cancer (Breyer is 75. While the case for him to go is strong, it’s not as strong as it is for his colleague). Leaving the court before the end of President Obama’s term would allow him to choose their successors. These political calculations are based, in some measure, on when Obama’s term of office ends in 2016. But what if Senate Republicans take control of the body in November?
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.
Then, if a Republican were to be elected president in 2016, they could put two conservatives judges in Ginsburg and Breyer’s place, as well as choose new judges to replace Antonin Scalia and Anthony Kennedy, should they step down. The result would be a virtually unbreakable conservative majority on the court for the next 20 to 30 years.
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