For several years now, the liberal legal community has been publicly debating whether Supreme Court Justice Ruth Bader Ginsburg should retire during Barack Obama's presidency, allowing him to appoint her successor. The pro-retirement scholars and journalists point out that if Ginsburg, an 81-year old cancer survivor, should die or have to step down during a Republican presidency, it would have huge implications affecting millions of people. Most prominently, four sitting justices already would likely vote to overturn the Roe v. Wade abortion rights decision — and if Ginsburg is replaced by a conservative, that faction would get a majority. But critics have said this the focus on Ginsburg is sexist or bad manners, or argued that Ginsburg brings more to the Court than merely a vote for the liberal bloc.
On Tuesday, we learned more about what Ginsburg herself thinks, from an interview she did with Elle's Jessica Weisberg. Here's the key exchange:
WEISBERG: I'm not sure how to ask this, but a lot of people who admire and respect you wonder if you'll resign while President Obama is in office.
GINSBURG: Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they're misguided. As long as I can do the job full steam.... I think I'll recognize when the time comes that I can't any longer. But now I can.
Ginsburg emphasizes, as she has in the past, that she can still do the job at "full steam." But she lays out a political rationale that's new, arguing that any nominee Obama would appoint this year that she'd "like" would be filibustered. However, since the Democrats are certain to lose at least three Senate seats this fall — and likely a couple more — it will surely only be more difficult for him to get a nominee confirmed next year.
What about after 2016? Well, despite Ginsburg's previously-expressed opinion that "it's going to be another Democratic president," Obama's poll numbers aren't good, which indicate that his successor could have a tough time winning. And if Democrats do hold onto the presidency, it looks unlikely that the party will get the 60 Senate seats necessary to beat a filibuster in the near future. The 60 votes Democrats controlled for a few short months in late 2009 and January 2010 were a once-in-a-generation majority, the biggest since the 1970s. So Ginsburg shouldn't be optimistic that things will improve anytime soon.
Now, if Ginsburg had stepped down this year, the chances Obama would have gotten a liberal replacement confirmed might have been relatively good. The 55 seats Democrats currently have is actually a pretty big majority as far as the past two decades go. Plus, if the GOP did launch a filibuster that seemed unjustified, Democrats may have been able to change the Senate rules to allow the contested nominee through, as they did for other nominations last year. Obviously, the party won't be able to change the rules if they lose the Senate — an outcome most election forecasters now think is more likely than not.
But, this is all moot — Ginsburg has clearly made up her mind, and she's staying put on the Court for the foreseeable future. Liberal justices have made similar decisions in the past. Liberals "have surrendered seats on the court by being less strategic than conservatives with the timing of their retirements," David Leonhardt wrote. Since the mid-1960s, according to his analysis, "Only one of the six most liberal justices has departed when a Democrat was president."
Of course, this calls to mind how absurd it is that major judicial questions in our political system hinge on whether a Supreme Court justice happens to die or choose to step down at a politically-inopportune time. It would be nice to limit all Supreme Court justices to staggered 18-year terms, as Norm Ornstein and others have proposed — this would correct much of the randomness from the current system. But since a constitutional amendment would likely be required, this will probably never happen.