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Should Justice Ginsburg Retire This Year?

Jonathan Bernstein makes a powerful argument for why Justice Ruth Bader Ginsburg should step down at the end of this term in June in order to allow President Obama to pick her successor. Noting that she is 80 years old and has faced cancer twice, Bernstein argues:

Ginsburg will turn 84 soon after Obama’s successor will be sworn in. Realistically, anyone planning for the future has to assume there’s a 50 percent chance of that successor being a Republican.

Moreover, the simple fact is that most Republicans will support a filibuster against any Supreme Court nominee. Right now, the 55 Democrats (including two independents who caucus with the Democrats) may be enough, combined with a handful of Republicans who are moderate enough or simply oppose knee-jerk filibusters, to get a nominee confirmed.

It’s only going to get harder, however. Next year is an election year, and Republicans fearing a Tea Party challenge will be even more reluctant to let the Kenyan socialist in the White House have a third Supreme Court nominee confirmed. And after that, the odds are pretty good that Democrats will lose ground in the 2014 elections and that they could even lose their majority in the Senate altogether.

And then every month that goes by brings us that much closer to January 2017 and makes it that much easier for Republicans to just implement a confirm-nobody strategy to run out the clock.

No, if she’s going to resign while Barack Obama is still in office, the time to do it (conditional on confirmation of a replacement) will be this year. And if she wants to support the ideals she’s worked for, turning the seat over to a younger liberal is really the only reasonable option.

I think he’s right. It’s highly unlikely that Ginsburg would last 8 more years, much less 12 should a Republican be elected in 2016 and be reelected in 2020. And the margin in the Senate is razor thin as it is, so any loss of ground in the 2014 midterms could make it more difficult to get her successor confirmed. Justice Breyer may want to consider the same thing. He’s “only” 74 and has had no health problems, but 8 or 12 more years may be difficult for him as well.

Comments

  1. marcus says

    I wish Judge Ginsburg was immortal, she is my hero. She will, of course, do whatever she thinks best, and I will not gainsay her. However, stepping down now might be the wisest thing for all the reasons mentioned above. The rights of too many people weigh in the balance to risk another wingnut (are you listening Scalia, Thomas?) justice.

  2. wscott says

    Realistically, anyone planning for the future has to assume there’s a 50 percent chance of that successor being a Republican.

    Honestly, I’d put it closer to 60% or more, just based on the public’s historical tendancy to want to swap parties every few years.

  3. jimvj says

    Only after she slips some chems into Scalia, Alito, and Thomas, that renders them incapable of continuing as SCJs.

    You know, you’re all hoping that too.

  4. gshelley says

    I’m not convinced that any Obama nominee would pass even now, given the trouble Sotomayer and Kagan had. If she retires, we could be left with a 5:3 split on the court

  5. says

    gshelley “I’m not convinced that any Obama nominee would pass even now, given the trouble Sotomayer and Kagan had. If she retires, we could be left with a 5:3 split on the court”
    Balderpucky! All Barack Hussein Obama has to do is nominate someone who isn’t a commie lesbo hispano extremist. It doesn’t have to be a leading light of Reactionary Conservatism. All the nomination has to be is a nice moderate, if only to curb the current leftwing extremism of the USSC. An animatronic Reagan programmed with the complete works of Rush Limbaugh and a resentment chip taken from Robot Nixon, for example, would only face intense demagoguery and filibustration, rather than the crippling demagoguery and filibustration a more leftwing nominee, like regular animatronic Reagan or zombie Pinochet, would face.

  6. jaybee says

    Sadly, the nominee whom Obama picks will most likely be right of Ginsberg, moving the court further to the right.

  7. says

    Am I misremembering gossip as fact, or didn’t Ginsberg already say last year that she intended to retire in 2014 regardless of which parties controlled which branches?

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