Ginsburg Thinks Democrat Will Win in 2016

The Washington Post has a long feature article about Justice Ruth Bader Ginsburg, who has made it abundantly clear that she has no intention of leaving the Supreme Court in order to assure that President Obama can nominate her successor. And she says she thinks a Democrat will win in 2016:

So Ginsburg understands politics but does not feel she faces a deadline to leave so that Obama, whom she admires, can choose her successor.

“I think it’s going to be another Democratic president” after Obama, Ginsburg said. “The Democrats do fine in presidential elections; their problem is they can’t get out the vote in the midterm elections.”

That strikes me as very naive for someone as politically savvy and intelligent as Ginsburg. We are still three years from a presidential election and virtually anything could happen between now and then. And it’s fairly rare for a candidate from the same party to win the presidency after another from the party has served two terms. It has happened only once in the last six decades, when the first President Bush followed Ronald Reagan in the White House. And that only happened, I think, because the Democratic candidate was one of the worst I’ve ever seen as a campaigner.

The Democratic candidate, presumably Hillary Clinton at this point, certainly has a good opportunity to win. She would be a formidable candidate. But that’s hardly a guarantee. And what Ginsburg risks by staying on the court if her political calculations are wrong can hardly be overstated. Put a Republican in the White House and replace Ginsburg with anyone who would be on the Republican short list for the Supreme Court and the results would be utterly devastating and would set back civil rights and civil liberties for decades, at the very least.

I admire Justice Ginsburg enormously. She is brilliant and tough as nails. But the bet she’s making here is one that we all must pay off if she loses.

22 comments on this post.
  1. Michael Heath:

    Ed writes:the bet she’s making here is one that we all must pay off if she loses.

    It’s far worse than this and reveals a level of selfishness by J. Ginsburg I find stunning. The upside is now an effective lock. She risks putting her chair back in play where her remaining in the chair after the ’14 election provides zero marginal upside, it only introduces an enormous downside if a Republican is elected president. If J. Ginsburg actually cares about future outcomes consistent with her understanding of the Constitution, there is zero upside to her continuing as justice.

    This is the second most idiotic argument I observe in the public square that’s framed around cost/benefit analysis. The worst is that of AGW denialists claiming that their denialism is justification not to mitigate the risks presented by climate scientists. That’s the most idiotic because even if a person was justifiably skeptical of what science reports, the benefits of mitigation still easily overcome the costs of mitigation.

  2. Marcus Ranum:

    It’s a shame that the justice system is a pawn in these games. Tells you a lot about how little the US is concerned with justice, doesn’t it?

  3. colnago80:

    Re Michael Heath @ #1

    If Justice Ginsburg resigned tomorrow morning, what makes Heath believe that the Rethuglicans in the Senate wouldn’t filibuster any nomination that Obama put forward? And get away with it.

  4. Chiroptera:

    The Republicans just shut down the government out of pure spite. I have a hard time believing that they’d allow any intelligent, rational candidate (that is, not a Tea Partier) through the confirmation process even if all the justices announced their immediate retirement and the Supreme Court was completely vacant.

  5. d.c.wilson:

    If a democrat wins in 2016, there’s no guarantee that republicans won’t filibuster any nominee then, either.

    If there was ever a time where the stars were aligned to make another democrat win in 2016, it would be now. The republicans seem determined to make themselves as unpopular as they can. Their extreme wing is ripping the party in half. Anyone who looks like a potential savior (Rubio, Cruz) can’t bridge the gap between the two factions and gets turned the moment they actually try to accomplish something that appeals to one side or another.

    It is rare for the same party to win the presidency three times in a row, but conditions are about the best they could be for the democrats to pull it off than they were at any other time since FDR. All they have to do is not blow it.

  6. Area Man:

    And it’s fairly rare for a candidate from the same party to win the presidency after another from the party has served two terms.

    Nate Silver did an analysis of this idea awhile back, and found that it basically isn’t true. On average, the incumbent party after 8 years has done slightly better in terms of popular vote margin.

    It has happened only once in the last six decades, when the first President Bush followed Ronald Reagan in the White House.

    Twice if you count Gore, who legitimately won. Since the issue has only come up 5 times in the last 60 years, 2 for 5 is indistinguishable from even money.

  7. Area Man:

    By the way, here are the latest polls matching Clinton against likely Republican challengers. She easily crushes all of them. The only one who comes within spitting distance is Chris Christie, who of course is regarded as a RINO.

    The usual caveats all apply: It’s a long way to Nov. 2016, yadda yadda. But it underscores the fact that, for now at least, Clinton is vastly more popular than any Republican.

  8. theschwa:

    Don’t worry, if/when a democrat wins in 2016, she will want to wait until at least 2020 to retire.

  9. Rip Steakface:

    Area Man beat me to it. The White House is, indeed, not a metronome, and I always make sure to bring up that article whenever anyone says the Republicans are guaranteed the presidency in 2016.

  10. abb3w:

    I suspect her concern might be not so much with the President, as the Senate. Getting someone to the left of Sotomayor past the current Senate would be difficult; but if Ginsburg can hold out until 2016, she can hope that some of the Tea Party loons (and other Republicans) who were elected in 2010 might get the boot.

  11. Modusoperandi:

    You’re forgetting that Ginsburg is immortal. Illness just makes her stronger, and she feeds on spite. She used to only come up to Thomas’ chin,. Now she comes up to his eyes. I am not even kidding about this*. Plus, she’s way, way, denser than she used to be. I think she’s turning into a metal. Ginsburgium.

    * Actually, I am. She can still take him, though.

  12. theschwa:

    @Modus (11):
    Is it possible Ginsberg is actually a golem?

  13. freemage:

    Can I put in a plea now for our candidate to NOT be Clinton? I’d like an actual moderate leftists, not yet another centrist.

    As for Ginsburg, one potential upside of her saying she’s staying in is that SCOTUS appointments aren’t going to be part of the 2014 elections. Which, in turn, might help Dems get enough seats to shut down a filibuster in the Senate, in which case she could resign without just leaving the seat open.

  14. Rip Steakface:

    Can I put in a plea now for our candidate to NOT be Clinton? I’d like an actual moderate leftists, not yet another centrist.

    Start shifting the Overton window and maybe that’ll happen. The Tea Party, for all its stupidity, knew how to friggin’ change politics and shift the Overton window in their favor. Now it’s our job to move it back.

  15. scienceavenger:

    Area Man said: Twice if you count Gore, who legitimately won.

    You can’t do that. Change the rules, you change the strategy, and the outcome. Maybe Gore would have won had the rules been “winner by majority vote”, but there’s no guarantee that he would have, since that would have led Bush to campaign in Texas, Gore in California, and a host of other changes to what they actually did.

  16. iknklast:

    My grandmother was forced to retire from teaching English at the age of 65 because it was assumed (in the 1960s) that a 66 year old teacher couldn’t effectively teach. Even then, justices were allowed to remain on the court until they became too old and senile to contribute. Many able and talented teachers were retired while still in their prime. Now, I agree that an incompetent teacher has a bad impact on society as a whole (but most of the teachers I’ve had that were bad in their 60s were bad teachers their whole life; there’s no magic number on teaching that I’ve seen, and if there is, it certainly isn’t 65). But we can’t insist on the retirement of justices even when they can’t wipe their own bottom anymore. If they want to stay, they can stay, even if the country suffers immensely from the bad decisions that come about as a result of their choice.

    Perhaps it’s time for a mandatory retirement age for judges. Over 80? You’re outta here!

  17. Area Man:

    Which, in turn, might help Dems get enough seats to shut down a filibuster in the Senate, in which case she could resign without just leaving the seat open.

    There should be no need for a filibuster-proof majority. The Republicans did not actually filibuster either Sotomayor or Kagan. One of the few not-completely-evil things they’ve done in recent history.

    And at any rate, the odds of a 60-seat Dem Senate in either 2014 or 2016 are essentially nil, unless the Republicans really do implode.

  18. Area Man:

    You can’t do that. Change the rules, you change the strategy, and the outcome.

    I’m not talking about changing the rules, I’m talking about following them. Most analyses showed that Gore would have won if they had counted all the votes in Florida. That’s before you get into issues with voter caging and poor ballot design.

    I think the Electoral College is stupid, but even within its confines, Gore should have won.

  19. D. C. Sessions:

    Is it possible Ginsberg is actually a golem?

    A careful study of photographs might answer that. She wears her hair up off of her forehead and even really good makeup couldn’t totally disguise the letters there.

    Of course, there are other reasons she might have “EMET” tattooed there.

  20. eric:

    @3, @4, @10: The risk/threat of a GOP filibuster means it might make sense for her to wait until 2014 to retire, if she thinks the Dems can pick up some Senate seats. But if that’s her worry, it still makes no sense to wait until after 2016.

    I think what’s going on here is just personality. And in some sense, its very predictable. You don’t climb to be a SCOTUS by being a pushover or meekly following orders. The people who respond to “we think it would be best for all of us if you quit and left” with “oh, okay then” aren’t the sort of people who get offered the job.

  21. gertzedek:

    It has happened only once in the last six decades, when the first President Bush followed Ronald Reagan in the White House.

    Keep in mind, in the last sixty years, we’ve only had four situations in which that would be possible (five, if you count LBJ as a two-termer). That’s a really small sample set, and the political landscape has changed quite a lot over that time (today’s politics are so different from those of Eisenhower’s time that the comparison isn’t really valid). Predicting likely election results from this peculiar political fact is a bit misleading.

    It’s a risky political decision she’s making, but it’s not an irreversible one…if the Republicans somehow start polling better on a national stage, she can always resign sometime in the next three years. Right now, though, Republicans aren’t looking too good for 2016…they’re becoming a party more and more dominated by extreme views, extremes that punish moderation. That sort of party can do well in midterms, but Presidential elections tend to go more towards the center. I would imagine the next Republican candidate will be plagued by the same issues that have plagued their last two candidates: having to both appeal to an increasingly dogmatic base that will accept no compromise while also trying to win over swing voters. That’s just not a workable situation; either you disenchant the base or you alienate the middle.

  22. danrobinson:

    Prediction mad-libs:

    The last time (X) was (Y), (Z) won the (event).
    Works as well for sporting events and elections.

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