THE BLOG
04/23/2014 08:15 pm ET Updated Jun 23, 2014

Not Justice Ginsburg, But the Two After Her

The people who see everything through the lens of partisan politics are currently playing a rather crass game which might be called "guess the date of Justice Ruth Bader Ginsburg's retirement." We'll get to the reasons for playing this game in a bit, but first the point must be made that Justice Ginsburg can stay right where she is for as long as she damn well feels like it. Which is entirely how it should be. Short of impeachment, the decision is hers and hers alone, as the Constitution demands. It matters not one tiny bit what anyone else thinks about her decision, which includes bored pundits looking to stir the partisan pot a bit in a slow news week.

Federal judges are appointed for life. There's a reason for this, and the reason is to avoid politics on the bench. An incoming presidential administration can legally fire all the lawyers in the Justice Department if it so chooses, but it cannot fire a single judge. This gives the judges themselves more independence from politics than anyone else in high office, which is exactly what the lifetime guarantee intended in the first place. Of course, judges can resign at any time, but the decision is solely theirs to make. And they are free to consider -- or not -- the political implications of the timing of their resignation, as they see fit.

Part of what sparked the recent conversation over Ginsburg was that former Justice John Paul Stevens was asked whether she should take politics into account when deciding when to retire (Stevens has a new book out, and was in the midst of a media tour to promote it when asked the question). What I found interesting in the interview was Stevens admitting that what convinced him to retire was what might be called a "senior moment" when reading a decision from the bench. He feared his mental capacities were in question, and did the honorable thing by stepping down. That's one good reason to resign, although it doesn't have to be the only one, Stevens essentially said. Which was a polite way for him to say that Justice Ginsburg is the only one who can make such a decision, for whatever reasons she feels are appropriate. This includes politics. If a judge feels like stepping down for political reasons, he or she is free to do so. He or she is also free to admit this or not in public.

The politics in question for Ginsburg might be called either "pessimistic" or even "cowardly" for the Democrats. The reason some Democrats are openly speculating about Ginsburg stepping down right now are entirely political and hinge on the next two elections. What will the makeup of the Senate look like after this year's elections? Which party will control both the White House and the Senate after 2016? The pessimism enters the equation because Democrats are not at all confident they'll still be in the majority in the Senate come next year. And there's no guarantee that a Democrat will sit in the White House after the 2016 election, either. Since presidents nominate Supreme Court justices and the Senate confirms them, this could mean that the window for getting a liberal Ginsburg replacement confirmed could be fast closing. Which is why the whispering has begun as to whether she'll step down after the court finishes this year's business.

If Ginsburg does step down this summer, the thinking goes, then President Obama will be able to name a replacement and have him or her confirmed before the midterm election. Ginsburg is 81 years old, after all, and she'll have to step down sometime or another, so why not now when a replacement can be easily confirmed? In the worst-case scenario, if Republicans take the Senate this year then they may be tempted to block any of Obama's Supreme Court nominees from being confirmed, partly as payback for Harry Reid getting rid of the filibuster on all other presidential appointments. This might have been seen as some far-fetched scenario in the past, but these days the atmosphere in Washington is so poisonously partisan that it is now well within the realm of possibility. It would provoke a constitutional crisis of sorts (especially if the standoff went on for two years), but it would likely delight the Republican base voters and those Republican politicians who have been itching to pick such a large fight with the president for years. Republicans would be gambling, in essence, that they could win the White House in 2016 and then appoint a conservative, instead of whomever Obama nominated. This is pretty pessimistic for Democrats. By calling for Ginsburg to retire they are signaling how nervous they are over their chances of holding the Senate. If they hold the Senate, after all, there would be no political reason for Ginsburg to retire for the next two years.

Supreme Court justices are some of the most powerful officials in American government. But the balance of this power is where the biggest battle is going to be fought, even if such speculation requires a lot more optimism from Democrats. So far, Obama has gotten the opportunity to appoint two justices. These replaced two liberal justices on the court. The balance of power remained exactly the same, though: four liberals, four conservatives, and one swing vote. Ginsburg stepping down and being replaced by Obama would also not change this ratio.

The real fight is going to happen when a conservative either dies in office or steps down. Ginsburg is currently the oldest sitting member of the Supreme Court. But not far behind her are three others: Stephen Breyer (who is 75 years old), Anthony Kennedy (77), and Antonin Scalia (78). Breyer is a liberal, so if he stepped down with Obama (or another Democrat) in the White House it wouldn't change the power balance. But Kennedy is the current swing vote, and Scalia is extremely conservative. If either Kennedy or Scalia were to resign or die in office and the Democrats held the presidency, there will be a confirmation fight the likes of which Washington hasn't seen for quite a while. Even replacing Kennedy with a staunch liberal would shift all of those 5-4 decisions to lean always in the liberal direction, rather than swinging back and forth as they do now. If Scalia were to leave office, this would be even more consequential since it would be a clear gain by liberals. If both Kennedy and Scalia were replaced by President Obama (or, perhaps, President Hillary Clinton), then the court's makeup would then be: six liberals, three conservatives, and no swing votes.

Obviously, this would usher in a new day for the Supreme Court. Some of the worst decisions of the past three or four decades might soon be up for review, to put this another way. If the next president is a two-term Democrat and Democrats also hold the Senate, this could very likely be the eventual outcome on the Supreme Court. So while it is amusing now to play the political parlor game of wondering when Ginsburg will retire, it really won't be that momentous for the Supreme Court as a whole. Also, Ginsburg is free to stay on the court as long as she pleases, no matter what the chattering classes think about it. The Constitution gives the choice to her without reservation or restriction. If Ginsburg does leave office while Democrats hold the White House and the Senate, she will be replaced by a younger liberal. The balance of power won't shift at all.

The next two to step down, however, might be groundshaking in importance. Imagine, if you will, Supreme Court news items regularly beginning with: "In yet another 6-3 decision...."

 

Chris Weigant blogs at:

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